WASHINGTON—Much has been made of “empathy” in Sonia Sotomayor’s Supreme Court confirmation hearings this week.

Top Judiciary Committee Republican Jeff Sessions said he was concerned by Sotomayor’s speeches when she stated that her background influenced her decisions. “This is not impartiality,” he said on Tuesday.

Sen. Charles Schumer, D-N.Y, a Sotomayor advocate, countered. “I believe empathy is the opposite of indifference,” he said Tuesday, “it is the opposite of, say, having ice in your veins.”

President Obama laid out the criteria for the qualities he was looking for in the Supreme Court nominee who would replace retiring Justice David Souter.
"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives," he said in May, noting “I view the quality of empathy… as an essential ingredient for arriving at just decisions and outcomes.”

Partisan rhetoric aside, a practical question surfaces: Is it possible for judges to completely separate themselves from their personal histories and infuse the law with the cool practicality that the ideal of blind justice demands?

“We would like to think that human beings are entirely rational, and one plus one equals two,” said Dev Patnaik, author of “Wired to Care” and CEO of the San Mateo, Calif., growth strategy firm Jump Associates. “But if that were true,” he added, “we wouldn’t need lawyers and judges . . . [but] the law is not like that; the law has nuance.”

Calling President Barack Obama “chief empathy officer for the nation” Patnaik said one crucial element missing from the discussions about empathy during the hearings is a misunderstanding about what it means to be empathetic. According to Patnaik, empathy is not about giving people a break.

“Empathy does not mean sympathy. Empathy does not mean pity.” Empathy, Patnaik said, “means ‘I can see your point of view.’”

Joseph Ura, an assistant political science professor at Texas A&M in College Station said the idea of empathetic judges is not unique to the current administration. Pointing to Brown vs the Board of Education, which struck down segregated public education, Ura said the landmark 1954 case is an example of how empathy and the objective, factual demands of the law can work in tandem.

“The written decision [in Brown v Board of Education] hinged on factual findings that legal segregation was harmful to the black children,” he said. If the high court in 1954, considered the facts from a different perspective, Ura said, it may have reached a different conclusion. “It was sort of an instance where the justices, using a broader set of social considerations reached a decision,” he said.

Law school professor Richard D. Friedman of the University of Michigan, dismissed the issue of empathy versus the law right off the bat. “I think the whole thing is kind of a foolish issue,” Friedman said. “Judges just don’t make up [law] out of whole cloth. Everything they do should be based on what’s happened before and be coherent with it.”

Friedman said that questioning Sotomayor about her views of courts being able to interpret the law and take it in different directions is essentially like asking her to do her job. The Constitution, Friedman said is written in broad, vague language and begs definition. For example, he asked, “Due process of law” and “restraint of trade,” terms embedded in our laws, “What does that mean?”

What these terms mean, Friedman said, is determined by what judges consider good policy and that idea of good policy determines how the law is applied. This is why, Friedman said some courts “are more likely to find anti-trust (violations) than others” with different thresholds.

Smart Jump’s Patnaik said that threshold for constitutionality is rooted and inseparable from past experience.

Describing by way of example a female friend who is sensitive to all forms of violence to the point of avoiding violent movies, he said her aversion is understandable: she grew up in Lebanon during the tumultuous civil war of the 1980s. “I have to think what she thinks about the 2nd Amendment issue may differ from that of someone who has never even seen a gun.” s

Senate Judiciary Chairman Sen. Patrick Leahy, D-Vt, said he hopes the committee will vote on Supreme Court nominee next week. If approved, Sotomayor’s candidacy will be then be voted on by the full Senate.