Justice Samuel Alito on Empathy and Judging

As is true for any Supreme Court nominee, there are many legitimate
questions to raise about Sonia Sotomayor, but the smear attacks on her
as some sort of "identity politics" poster child -- which are still being justified largely if not entirely by the Jeffrey Rosen/TNR gossipy hit piece on her -- are nothing short of disgusting. As Anonymous Liberal put it: "Apparently, the only way to avoid 'identity politics' is to pick white men for every job." Both Adam Serwer and Daniel Larison
note the glaring, obvious hypocrisy in simultaneously insisting that
"empathy" has no place in the law while protesting Sotomayor's decision
in Ricci on the completely law-free ground that what happened to the white firefighters is so "unfair." And Matt Yglesias writes that he is "really truly deeply and personally pissed off my the tenor of a lot of the commentary on Sonia Sotomayor" and, in a separate post, notes the wildly different treatment between Sotomayor and Sam Alito despite very similar records.

With
regard to that last point -- how completely different is the reaction
to Sam Alito and Sonia Sotomayor -- just consider this exchange that
took place at the beginning of Alito's confirmation hearing (h/t sysprog):

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK):
Can you comment just about Sam Alito, and what he cares about, and let
us see a little bit of your heart and what's important to you in life?

ALITO:
Senator, I tried to in my opening statement, I tried to provide a
little picture of who I am as a human being and how my background and
my experiences have shaped me and brought me to this point.

ALITO:
I don't come from an affluent background or a privileged background. My
parents were both quite poor when they were growing up.

And
I know about their experiences and I didn't experience those things. I
don't take credit for anything that they did or anything that they
overcame.

But I think that children learn a lot from their
parents and they learn from what the parents say. But I think they
learn a lot more from what the parents do and from what they take from
the stories of their parents lives.

And that's why I went into that in my opening statement. Because
when a case comes before me involving, let's say, someone who is an
immigrant -- and we get an awful lot of immigration cases and
naturalization cases -- I can't help but think of my own ancestors,
because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But
when I look at those cases, I have to say to myself, and I do say to
myself, "You know, this could be your grandfather, this could be your
grandmother. They were not citizens at one time, and they were people
who came to this country."

When I have cases
involving children, I can't help but think of my own children and think
about my children being treated in the way that children may be treated
in the case that's before me.

And that goes down the line. When
I get a case about discrimination, I have to think about people in my
own family who suffered discrimination because of their ethnic
background or because of religion or because of gender. And I do take
that into account. When I have a case involving someone who's
been subjected to discrimination because of disability, I have to think
of people who I've known and admire very greatly who've had
disabilities, and I've watched them struggle to overcome the barriers
that society puts up often just because it doesn't think of what it's
doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Mr.
Chairman, I think I'll yield back the balance of my time at this time,
and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

Anyone
who is objecting now to Sotomayor's alleged "empathy" problem but who
supported Sam Alito and never objected to this sort of thing ought to
have their motives questioned (and the same is true for someone who
claims that a person who overcame great odds to graduate at the top of
their class at Princeton, graduate Yale Law School, and then spent time
as a prosecutor, corporate lawyer, district court judge and appellate
court judge must have been chosen due to "identity politics"). And the
idea that her decision in Ricci demonstrates some sort of
radicalism -- when she was simply affirming the decision of a federal
district judge, was part of a unanimous circuit panel in doing so, was
supported by a majority of her fellow Circuit judges who refused to
re-hear the case, and will, by all accounts, have at least several
current Supreme Court Justices side with her -- is frivolous on its
face.

I have no doubt there are legitimate grounds for objecting
to some of Sotomayor's judicial opinions. Doing that, as well as
vigorously questioning her on important areas where she has little
record (such as executive disputes), is not only legitimate, but
vital. But the attacks thus far -- not just from the Right but from
the sterling Respectable Intellectual Center -- say far, far more about
the critics than they do about her. How can her "empathy" views
possibly be distinguished from what Sam Alito -- at Tom Coburn's urging
-- said when he was confirmed?

UPDATE: The focus on the three instances in which Sotomayor's rulings were reversed is equally inane.
Reversals of that sort are a standard part of how the appellate
justice system works and hardly means that a judge's abilities should
be called into question. Any judge who sits on the bench long enough
will make erroneous rulings at times. Many times, the Supreme Court
makes new law when reversing and other times it is the Supreme Court's
majority that errs.

But leave all that to the side: again,
look at how Alito's reversals were treated, even though there were more
of them and weightier questions:

* In a well-known 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito wrote a sole dissent
supporting a state requirement that women inform their husbands before
being permitted to obtain an abortion; the Supreme Court later rejected his view.

* In 2000, Alito ruled
that Congress could not penalize state governments for failing to
comply with the Family and Medical Leave Act; in 2003, the Supreme
Court, by a 6-3 vote (including Chief Judge Rehnquist) rejected that conclusion and ruled that states could be penalized.

* In a 2004 death penalty case Alito decided -- Rompilla v. Horn --Alito rejected the defendant's argument that his attorneys had failed to do perform an adequate investigation to prepare for his sentencing hearing. The Supreme Court reversed Alito's decision,
ruling that the defense attorney's failure to even review evidence they
knew the prosecution was going to introduce at sentencing violated the
Sixth Amendment.

There are numerous other instances
where Alito's rulings were repudiated either by the Supreme Court or
even his own Circuit. Judge for yourself if those were treated the
same way as Sotomayor's more limited and less meaningful instances of
reversals. Was the argument made that this proved he was inept,
intellectually deficient, and chosen soley for "identity politics" in
order to attract the key Italian and Catholic voting blocs?