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."
Contrast this with Wood v. Allen, a case decided during Sotomayor's first year on the Supreme Court. A petitioner had also been convicted of capital murder. The lamentably named Holly Wood argued that his court-appointed attorneys had failed to ensure his right to a fair trial by neglecting to introduce evidence of mental retardation at the sentencing stage.
This time, Sotomayor wrote the majority opinion affirming a lower-court ruling that rejected Mr. Wood's claim over the objections of Justices Anthony Kennedy and John Paul Stevens. The dissent sounded a similar note to Sotomayor in Pinholster. How to account for the difference? For Sotomayor, it has nothing to do with the sympathy of the petitioner (or the empathy of a judge), but the sanctity of the trial process.
In Mr. Wood's case, Sotomayor concluded that not introducing evidence of mental retardation was a "strategic decision" by Wood's defense team. It may not have been a particularly good decision – Sotomayor doesn't deny this – but as she observed in oral arguments, "whether the decision is right or wrong is not at issue," for "[e]ven if it's wrong, it could still be reasonably wrong."
Contrast this with the case of Pinholster, whose attorney not only admitted at trial that he "had not prepared any evidence by way of mitigation," but when given the option by the judge to request a postponement, basically shrugged his shoulders: "I don't think the pa[ss]age of time would make a great deal of difference."
As a practical matter, maybe not, but as a procedural matter, the difference between a bad strategic decision and no strategy at all makes every bit of difference – at least to Sotomayor.
Time and again in her decisions, she has threaded the needle between empathy and equal justice by a jurisprudence of procedural care. For her, in a criminal justice system where lawyers, judges, and the police discharge their responsibilities with good faith and general competence, the need for judicial empathy is largely moot, for such a system keeps its essential constitutional promise that the process, if not always the outcome, will be just and fair.
Indeed, earlier statements show her skepticism of the individual power of empathy.
"[T]o understand [other people] takes time and effort," Sotomayor told a group of law students in a 2001 address, "something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Others simply don't care."
What counts: a sound legal process
Judges, in turn, should not so much rely on empathy as commit themselves to a legal process that is rigorous in its attention to the particular plight of every person that comes within its sphere.
"I am reminded each day that I render decisions that affect people concretely," she said in the same address, "and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives."
For Sotomayor, such an approach does not compel sympathy for the devil. It merely affirms that, in the American criminal justice system, even the devil deserves his day in court.
John Paul Rollert is a doctoral student at the Committee on Social Thought at the University of Chicago. His essay, "Reversed on Appeal: The Uncertain Future of President Obama's 'Empathy Standard,' " was recently published by the Yale Law Journal Online.