The Bottom Line (Up here at the top....)
Judging is far too important to be considered a mere technical process - many areas of our legal system requires that judges exercise empathy as part of the process of judging.
As liberal, I often disagree with Republican views.
But I totally agree with their current view that the Sotomayor hearings give us an opportunity to discuss our legal system and the role of judges.
But, in advancing their ideas and views, the Republicans have inadvertently done themselves and our legal system, and our historic self-governance a significant injustice: the idea that judges are mere technicians who apply a straightforward set of written procedures in a limited arena of endeavor without any deep consideration.
The arena of the court and of judging is the wide open arena of human activities and interactions: endlessly complex and often subtle. And the rules (many of which have been, over the centuries through our present age, created by judges themselves - and many of which have been written by legislatures and administrative agencies) are far from complete or of certain application.
Judging is extremely important business: for the country, for the litigants in court, and for future personal and business decision making: "If I/we do such and such, what are the legal risks?"
We don't call the folks in the black robes technicians, we call them judges. We call on them to exercise thoughtful consideration of (i) the facts before them in context, (ii) the laws and details of those laws which might or might not apply to the given situation, and (iii) how their decisions, their legal judgments, will affect future activities of people in similar situations.
If judging were merely a matter of taking some fixed set of "blackletter" laws and finding those which apply, there would be no litigation: why spend the money if the outcome is certain?
No one is served by the view that judging is no more than calling balls and strikes within the limited confines of the narrowly proscribed universe of baseball.
Even in that narrow universe, however, one call that umpires sometimes have to make is when the hitter is struck by the pitch: "Was it intentional? What was the pitcher thinking?"
There are many legal situations where, as a matter of law, judges need to determine the intent of the parties: In the recently decided Ricci case, the applicable law called for the courts to determine if there was "discriminatory intent" In the words of Justice Kennedy, who wrote the opinion: "Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”)."
Judges also sometimes look to the intent of the legislature: "The rule petitioners offer would run counter to what we have recognized as Congress’s intent ...."Also in Ricci.
And almost all of our criminal laws require that the accused intent be established.
How does one determine intent? In part, one looks at the facts and draws logical conclusions. But in interpreting those facts, drawing those conclusions, one has to exercise one's empathy to look inside the actor's thoughts.
In search and seizure cases, as a matter of law, often the determination turns on the expectations of privacy people hold: in a student drug testing case, Pottawatomie County, V. Earls, 536 U.S. 822 (2002), Justice Thomas observed "We therefore conclude that the students affected by this Policy have a limited expectation of privacy..
How does a judge determine those expectations? How did Thomas and his concurring fellow justices determine the expectations of privacy of the affected students?
They looked at the facts. In an earlier case involving student athletes, the Court had found that athletes have a lower expectation of privacy as evidenced by locker room communal states of undress and showering. In Earls, Justice Thomas et al determined that non-athletes involved in extra-curricular activities also have a reduced expectation of privacy. How did those judges make that determination? Again, in part, but as a necessary part of the process, they had to exercise their powers of empathy.
The courts play an extremely important role in our society. By the very nature of what they do, roughly, 50% of the people who appear before them will conclude they did not receive justice, that they got screwed. Plain old human nature at work.
With that uphill battle of the courts and legal system to retain the respect of citizens, characterizations which diminish the role and the needed talents of judges are counterproductive and undermine a central and critical pillar of our democracy.
Throughout the centuries in our legal history, there have been periods where the "legal dance step" became all important: if a litigant did not get the steps exactly right, he didn't eve get a chance to plead his case. And justice was not served. Such periods have always been corrected because, after all, justice is the goal.
If our judges are restricted to calling balls and strikes, making sure the dance steps are properly performed, we could again enter a period of justice denied.
Justice and judgment require a range of skills and abilities, including exercising a degree of empathy - the ability to see inside another's head and heart to achieve justice.
Mischaracterizing the important qualities that judges need to exercise to do justice will end up denying justice at times.