Justice Sam Alito on empathy and judging

The attacks on Sotomayor say far more about her critics than about her.

Published May 27, 2009 3:28PM (EDT)

U.S. Supreme Court nominee Samuel Alito laughs alongside his wife Martha-Ann (R) and sister Rosemary during the final day of public testimony in his Senate confirmation hearings on Capitol Hill in Washington, January 12, 2006. Alito completed his testimony before the Senate Judiciary Committee on Thursday after frustrated Democrats took a final crack at getting more definitive answers from the 55-year-old conservative.
U.S. Supreme Court nominee Samuel Alito laughs alongside his wife Martha-Ann (R) and sister Rosemary during the final day of public testimony in his Senate confirmation hearings on Capitol Hill in Washington, January 12, 2006. Alito completed his testimony before the Senate Judiciary Committee on Thursday after frustrated Democrats took a final crack at getting more definitive answers from the 55-year-old conservative.

[updated below - Update II (with video)]

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 by the tenor of a lot of the commentary on Sonia Sotomayor" and, in a separate post, notes the wildly different treatment accorded 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 power 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?


UPDATEThe 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 involved 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 which Alito decided -- Rompilla v. Horn --Alito rejected the defendant's argument that his attorney's had failed to do conduct 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 Alito was inept, intellectually deficient, and chosen soley for "identity politics" in order to attract the key Italian and Catholic voting blocs?


UPDATE II:  Daily Kos' Jed Lewison found the video of the above-transcribed statement from Alito.  This should be played on every cable news show where a Sotomayor opponent complains about the use of "empathy" in judicial decision-making:

Knight-Ridder, by Steven Henderson, "Many of Alito's rulings have been at odds with Supreme Court," 11/1/2005:

WASHINGTON -- Samuel Alito once wrote that employees who allege sex discrimination ought to have a tougher time proving their claims. The Supreme Court disagreed.

Alito once argued that Congress hadn't granted state workers the family-leave benefits that are mandated for other employees. The high court rejected his thinking again.


And Alito, now President Bush's choice to replace Justice Sandra Day O'Connor, once embraced a standard that would make it harder to punish water polluters. But the Supreme Court didn't go along.

In Alito's 15 years of rulings on the Third Circuit Court of Appeals in Philadelphia, many of his interpretations of federal law and the Constitution are at odds with established thinking and practice, and ultimately they've been rejected by large majorities on the high court he hopes to join. . . .

In a 1996 employment discrimination case, Sheridan v. Dupont, Alito concluded in his dissent that victims of sex discrimination in the workplace should meet a higher standard of proof than was required.

Alito said proving discrimination and that the employer was responsible weren't always enough to ensure that the claim wouldn't be dismissed by a court. He based his interpretation on the rulings of another, more conservative appellate court decision, urging his colleagues on the 3rd Circuit to adopt that standard.

They didn't, and the Supreme Court later unanimously rejected that same rationale in another discrimination case, Reeves v. Sanderson Plumbing Products, in 2000. . . .

In another knotty case, Chittister v. Department of Community and Economic Development, Alito questioned Congress' power to require state governments to grant family and medical leave to men and women equally.

Alito's opinion, which was echoed in opinions from other lower courts, would have denied protection to millions of workers whom Congress clearly intended to protect with the Family and Medical Leave Act of 1993.

The Supreme Court contradicted Alito's thinking in a 2003 ruling in Hibbs v. Nevada Department of Human Resources. The late Chief Justice William H. Rehnquist wrote the opinion.

Alito also joined another judge in 1997 in a ruling that attempted to make it more difficult to hold polluters accountable when they fouled water supplies.

Rather than applying the standards that punished companies based on how much they polluted a body of water, Alito embraced an approach that would require proof that the pollution damaged the water. The ruling, in Public Interest Research Group (PIRG) v. Magnesium Elektron, invalidated an existing $2 million fine.

Three years later, the Supreme Court rejected Alito's analysis, saying in another case that the new standard raised "the hurdle higher than ... necessary."

By Glenn Greenwald

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