[Peace-discuss] Glenn Greenwald: Justice Samuel Alito on Empathy and Judging

[Robert Naiman]

Published on Wednesday, May 27, 2009 by Salon.com
Justice Samuel Alito on Empathy and Judging

by Glenn Greenwald

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 [1] largely if not entirely [2] by the Jeffrey
Rosen/TNR gossipy hit piece on her -- are nothing short of disgusting.
 As Anonymous Liberal put it [3]:  "Apparently, the only way to avoid
'identity politics' is to pick white men for every job."  Both Adam
Serwer [4] and Daniel Larison [5] 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 [6] 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 [7], 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 [8] (h/t sysprog [9]):

    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 [10] on the three instances in which Sotomayor's
rulings were reversed is equally inane [11].  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 [12] supporting a
state requirement that women inform their husbands before being
permitted to obtain an abortion; the Supreme Court later rejected his
view [13].

    * In 2000, Alito ruled [14] 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 [15] (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 [16] that his attorneys had
failed to do perform an adequate investigation to prepare for his
sentencing hearing. The Supreme Court reversed Alito's decision [17],
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 [18] 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?