Justice Sotomayor – not guilty of 'empathy'

Actions don't always speak louder than words. Just ask Justice Sonia Sotomayor. A little more than two years ago, in the midst of her Supreme Court confirmation hearings, she found herself on the defensive, not so much for what she had done as for something President Obama had said.

When Justice David Souter announced his retirement in May 2009, the president declared he would nominate a replacement "who understands that justice isn't about some abstract legal theory or footnote in a casebook."

Instead, he argued, justice should reflect "how laws affect the daily realities of people's lives." He went on, "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions...."

Accordingly, when the president nominated then-Second Circuit Judge Sotomayor to take Justice Souter's place, her name became synonymous with empathy, a word she had never used to describe her own jurisprudence.

GOP senators beat the empathy drum

Not that Republican members of the Senate Judiciary Committee were willing to let her own views stand in the way of a convenient line of attack. During their opening statements at the confirmation hearings, each one invoked Sotomayor's supposed penchant for empathy with a sense of alarm normally reserved for estate taxes.

"President Obama clearly believes that you measure up to his empathy standard," Chuck Grassley ominously intoned. "That worries me."

The worry was that, when Mr. Obama said empathy, what he really meant was sympathy, or more to the point, the extralegal sympathy of a liberal activist judge. "That is, of course, the logical flaw in the empathy standard," Sen. Jeff Sessions warned. "Empathy for one party is always prejudice against another."

Never mind that understanding the concerns of one party – the very act of empathy – doesn't necessarily entail bias against another. For conservative court watchers, the president's "empathy standard" was a proxy for partiality and Sotomayor its black-robed embodiment.

So with two years of Supreme Court service under her belt, has Sotomayor lived up to her unsolicited reputation for empathy over equal justice? Quite the contrary. Her divergent conclusions in two remarkably similar cases capture the guiding concern of her jurisprudence – a legal system distinguished by procedural fairness, if not necessarily perfect outcomes.

The more recent of the two is Cullen v. Pinholster, a case decided last term. In a 6-to-3 decision, the court denied a claim by a death row inmate, Scott Pinholster. He contended that, in failing to present mitigating evidence of mental deficiency at his sentencing, his own lawyers had undermined his constitutional right to a fair trial.

Writing for the dissenting justices, Sotomayor described the omissions by Mr. Pinholster's defense: "The jury heard no testimony at all that Pinholster likely suffered from brain damage or bipolar mood disorder, and counsel offered no evidence to help the jury understand the likely effect of Pinholster's head injuries or his bizarre behavior on the night of the homicides."

If Sotomayor sounds indignant, that's because, as she puts it, the fate of Pinholster's claim turns on whether "there was a reasonable probability that at least one juror confronted with the 'voluminous' mitigating evidence counsel should have discovered would have voted to spare Pinholster's life."

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