Thursday, July 23, 2009

Holding Big Business Accountable: Judge Sotomayor, Empathy and Judicial Decision Making

Last week's confirmation hearings for Judge Sonia Sotomayor's nomination to the United States Supreme Court made few waves in the business community. This is most likely because Judge Sotomayor is a centrist when it comes to business-related decisions. "Judge Sotomayor has a track record of moderation on issues of importance to the business community." The fact that she is a moderate means that she will continue to face criticism from both conservatives and progressives. But, progressives, particularly those concerned about the impact big business has on social issues, may truly have something to worry about.

Observing that the role of judges is to interpret law and not make law, President Obama announced that he searched for a Supreme Court nominee with "a commitment to impartial justice." At the same time, however, the president acknowledged that experience and empathy were important and desirable components of judicial decision making. In several speeches she made in the years before she was nominated, Judge Sotomayor expressed a similar sentiment. "Our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others." In her speeches, Judge Sotomayor eloquently expressed the careful balancing that she attempts as a judge. "Life experiences have to influence you", she said. Sotomayor explained that judges should acknowledge their personal feelings and then "set them aside". She posed a rhetorical question in one of her speeches. "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

Judge Sotomayor is right about the impact of the experiences of women and people of color on their decision making. But she omitted an important corollary to her observations. Race and gender not only impact the decisions of women and people of color. The decisions of Sotomayor's white male colleagues are influenced by their race and gender also. Whiteness and maleness are experientially relevant to the thought processes of white men.

In the days leading up to the confirmation hearings, Republicans expressed concern about the President's search of an empathetic justice, arguing that "empathy" was "code for injecting liberal ideology into the law". During the hearings, Sotomayor was questioned about potential bias in her judicial decision making based on her race and gender. Senator Jeff Sessions argued that a judge who allowed personal experiences or background to affect her decisions would violate "the American ideal and oath that a judge takes to be fair to every party." What I found frustrating about the questioning on this issue is that it implied that white men do not have biases based on their race and gender.

Even more discouraging for me were Judge Sotomayor's responses to this line of questioning. The judge seemed to back away from the ideas she expressed in her speeches about the effects of personal experience on judicial decision making. She said that the speeches were her ruminations on an academic issue and were meant to inspire the women and Latinos who were in the audience. At some point, however, she said the following: "Life experiences have to influence you. We're not robots who listen to evidence and don't have feelings. We have to recognize those feelings, and put them aside. That's what my speech was saying." As I watched the hearings, I wanted her to say more on this. I wanted her to emphasize that her observations applied not only to women and people of color, but to white men also. I wanted her to make clear that the decision making of white men is informed by their race and gender.

The fact that life experiences and empathy influence decision making does not mean that judges cannot be fair. But, fairness is more easily accomplished once the possibility of empathic understanding, or the lack thereof, based on race, gender, class and other factors is acknowledged. And, if men and women, whites and people of color, fail to acknowledge the role empathy plays in their thought processes, fair decision making is impossible.

That race and gender, and other aspects of our personal background impact our decision making is not a new idea. Critical legal studies scholars, feminist legal theorists and critical race theorists made this point a long time ago. Even the Delaware Supreme Court explicitly acknowledged the role empathy plays when corporate directors are asked to determine whether shareholder litigation should go forward. Because the suits allege wrongdoing on the part of the directors' colleagues and friends, the court wrote, "we must be mindful that directors are passing judgment on fellow directors in the same corporation.... The question naturally arises whether a 'there but for the grace of God go I' empathy might not play a role."

She has not been confirmed yet, but most agree that Judge Sotomayor will in fact become the first Latina to serve on the Supreme Court. I am concerned about the impact of big business on social issues, so I am worried about Judge Sotomayor's willingness to retreat a bit from the basic observations made in her speeches about the role of life experience in judicial decision making. Does her retreat predict diminished empathy on her part for the women, people of color, or the poor and working classes who will ask the Supreme Court to consider discrimination, harassment and other types of cases brought against big business?

Much as been written about the corporate scandals of 2001 and 2002 - Enron, WorldCom, Tyco, Adelphia, etc.; and the excessive risk taking of business leaders that contributed to the current economic downturn. To say that greed was the root of these particular evils is too simplistic. The causes are far more nuanced. Understanding the relevant aspects of human nature is imperative. Acknowledging the role of empathy in judicial decision making and corporate governance is an important first step.


  1. I certainly agree with the writer’s insight and concerns. My hope is that Judge Sotomayor’s remarks during the hearings, which have been accurately categorized as a retreat, were based on her desire for a successful and expedient conclusion to the nomination process. Given her previous comments and rulings, once on the Supreme Court, she should have the confidence to rule as a Latina women who grew up in a Bronx housing project, lost a father at the age of nine, was raised by her widowed mother and struggled to help care for a younger brother. We can only wait to see.

  2. I wish they would stop refering to her race and gender and just simply say she is very quailfied person for the job.

  3. professor wade: i could not agree more with your assessment that white male judges are completely motivated by their own life experience (often one of great privilege). i too was frustrated by the line of questioning that seemed to go unchallenged that only minorities are at risk for allowing life experience to influence their decision making.

    in truth, the executive compensation "scandal" that has again reared its head in today's news is evidence of this white privilege. in the face of bailouts, trillion dollar deficits and abysmal decision making that led us into this global crisis, we have goldman sachs and morgan stanley setting aside billions for executive compensation for their executives that have simply ridden a captial markets bump from devastating lows. they are blinded by their privilege, as are so many white male judges.

    professor wade, what do you think the outcome will be when judge sotomayor is faced with her first case that impacts hard working Americans and corporate executive decision making driven by greed?

  4. Dear anonymnous,
    Excellent question about what the judge will do when she gets her first case relating to corporate greed. I think she'll do her best to be fair. I only hope that she will not be overly concerned about being perceived as biased in favor of a plaintiff who may be of color, female, or working class. And, you're so right about the executive compensation scandal and white privilege.

  5. Professor Wade,

    I too was troubled by how Sotomayor chose to respond to the questions regarding her speeches and the narrow-mindedness of the individuals who posed such questions in the first place. But even though the point of debate or concern was and unnecessary and obvious one - of course we are all influenced and shaped by our life experiences - there seemed to be something missing.

    "Race, Class, and Gender" - this in Cultural Studies is what some often refer to as the mantra - the three areas within Cultural Studies that are most often examined. The fact that class was most often absent from the lines of questioning directed at Judge Sotomayor was interesting because had that third component of the mantra come into play, then the issues of empathy related to life experiece could have more easily been turned to the other (read: white and male) justices. The carefully chosen diction was an interesting tactic. Then again, that is what the hearings happen to be about - asking provocative questions in hopes of throwing the person being examined off of their carefully crafted answers.

    I do hope that once Sotomayor is approved and serving on the Supreme Court some of the language games will end. Hopefully she will feel secure enough in her position on the bench to hold fast to the ideas she expressed in her speeches about the effects of life experiences on judicial decision making.

  6. I agree with JDC's comment. Would it have been wise for Judge Sotomayor to have said more at the hearings about the roles of emotion and values in judicial decisionmaking? She acknowledged that life experiences have influence on people—even judges—when they are making decisions. But for Judge Sotomayor to take that idea to its logical conclusion and debate the implications of Senator Sessions’ line of questioning would have generated heat—and I am not sure it would have generated light.

  7. i think the comments by cheryl and anonymous are directly on point in connecting white privilege with the sotomayor hearings discourse and the executive compensation issues that have arisen ever since the meltdown. it is as if the executives at the struggling or failed banks have a tin ear and cannot hear what main street is screaming.

    main street continues to struggle. unemployment numbers are frightening. corporate executives continue to strain to provide bonuses and "business as usual" compensation. it is really breathtaking to watch.

  8. Thank you for your posting Professor Wade.
    Throughout the hearings, I too was eager to hear discussion of how the life experiences of white males have obviously influenced decisions made by white male judges. Instead, I heard only back peddling by Judge Sotomayor from her now infamous statement about a "wise latina" judge.
    Republicans seem to have successfully made "empathy" a dirty word.
    I'm not sure that a confirmation hearing, however, is really the place for philosophical debate. The hearing seems to be an elaborate, high-stakes game of "gotcha", not a truth seeking forum.

  9. Yes, JDC and Prof Burch and Anne, I agree that a heated debate about the myopia of her questioners may have threatened Judge Sotomayor's confirmation. But, I wonder whether she would have risked her confirmation by simply saying that women and people of color are not the only people who bring perspective and experience to their decision making. She could have said that every judge, regardless of race and gender must attempt to set aside biases, etc. She said something like this in her speeches.
    dre's comment about the "tin ear" that many in power have may mean that the Judge's retreat was necessary. If she had said anything - even the most uncontroversial statement may not have been heard. But, someone paying attention to the hearings would have heard it. I still think she missed an opportunity - a "teachable" moment that could have happened without confrontation or "heat" as Prof Burch put it.

  10. Thank you for your post Professor Wade,

    I agree with your concerns!

    During the confirmation hearings, Republicans were forced to focus primarily on Judge Sotomayor's speeches rather than her legal rulings because she has largely followed precedent in her career.

  11. I think most legislators forget two statements that are referred to throughout the law. The impartial jury which is more commonly referred to as 'a jury of your peers'. A jury of your peers because you want them to bring their personal experiences. I also think they forget the 'reasonable person' standard. These statements are repetitive throughout the law because it brings into play personal experiences.