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Is Sotomayor Too Empathetic? Not Empathetic Enough?

Sotomayor6_sitting.jpgThe likely case conservatives will unite around to bloody Sonia Sotomeyer is the affirmative action suit Ricci vs. DeStefano. It's already been in the Wall Street Journal. Richard Cohen wrote about the case for this newspaper.

But so far, most of the commentary has focused on Frank Ricci, a dyslexic firefighter who studied endlessly and hired someone to read him flash cards before a tough test that would decide a promotion. Ricci passed, but the test results were thrown out. The reason? Not enough African Americans cleared the exam, and the department worried it would be sued under Title VII. Ricci's tale is troubling. It's hard not to feel for him.

Ricci's experience, however, is not related to the legal questions presented by the case. As Dylan Matthews explains at Campus Progress, Sotomayor appears simply to have addressed the question before the court: That question was whether the county had reason to believe that the test results left it vulnerable to a lawsuit. Indeed, as Dahlia Lithwick and Doug Kendall argue over at Slate, Sotomayor is being attacked for something relatively odd: Rather than empathizing with Ricci, she ruled on the legal issue at hand. And that meant ruling against Ricci.

Conservatives, thus, are in the awkward position of choosing one of two lines of attack. You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both.

(Photo credit: White House.)

By Ezra Klein  |  May 27, 2009; 1:07 PM ET
Categories:  Legal  
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Comments

What conservatives are set to argue here, I believe, is that Sotomayor had it in for the white man. They're using "empathy" as a proxy for "favors people of color over whites."

Posted by: citizenstx | May 27, 2009 1:36 PM | Report abuse

justitia, the goddess of justice, was represented sometimes blindfolded ,and in some cultures without a blindfold.
but as an anthropomorphic goddess, she had human attributes...which means, with or without her impartiality, she always had a heart.
impartiality has to be tempered with empathy.
who would want a supreme court justice who didnt examine with his heart, as well as his mind, when casting a final judgement?

Posted by: jkaren | May 27, 2009 1:47 PM | Report abuse

OK, maybe I'm the unempathetic one, but why does everyone keep mentioning that this guy is dyslexic? He's a firefighter, not an English teacher. Dyslexia doesn't seem to be relevant at all. It's like saying, "oh, you know that black guy in Plessy v. Ferguson? Also, he's deaf." WHO CARES?

Posted by: tomveiltomveil | May 27, 2009 2:36 PM | Report abuse

Simple: Empathy is bad, except empathy for white guys.

Posted by: steveandshelley | May 27, 2009 2:42 PM | Report abuse

Ezra, I'll bet you a chorizo, goat, and pork skin taco that the Republicans can, in fact, argue that Sotomayor is too empathetic to make a good justice, and also that her ruling in Ricci was cold and unfair. And will.

Posted by: JonathanTE | May 27, 2009 4:39 PM | Report abuse

I think the point your missing is that if the county believed the test was unfair - THEN WHY DID THEY GIVE IT?
If they thought they would be sued - THEN WHY TELL THE FIREFIGHTERS YOUR PROMOTION WILL BE BASED ON THE TEST RESULTS.

It appears the county didn't consider being sued until after they had already created the test, administered the test and told the firefighters promotions would be based on the test.

It wasn't until after the fact the county now claims it might have been sued...but the county is already being sued for NOT following their own stated plan for promotions. So being sued clearly can't be determinative since either side could have sued, those that passed and those that didn't.

If the county had told the firefighters, look - were going to give you a test for promotions but if not enough minorities pass, were throwing it out. That wasn't the stated promotion plan, that was an after the fact change, which damaged the plantiff, period.

Posted by: Singer4321 | May 28, 2009 7:40 AM | Report abuse

The question is even simplier, were Ricci and the others damaged by the counties actions. Ricci spent thousands of dollars and hundred of hours studying based on the counties promise of promotion for high test scores.

The plantiffs also include a minority by the way.

Then the county turns around after the test and says, just kidding guys, sorry you're out thousands of dollars and thousands of hours of time and effort because we think its possible some day some unknown person will sue us is ludicrous.

If the county so feared a lawsuit why didn't they just not give the test? Or provide addtl training and tutoring to the minority applicants?

So say 100 gay couples show up at the county offices to get gay marriage licenses with the counties promise that they can get married if they apply for a license.
Then the county says, sorry no black gay couples applied for licenses so we can't marry all you white gay couples.

Posted by: Singer4321 | May 28, 2009 7:51 AM | Report abuse

The new definition of 'racism' is "black advantage". If any decision is not to the benefit of blacks, it's 'racism'.

I don't say this lightly. In 1965 we had one definition of 'racism', in 1990 we had another and it's morphed into what we have today. What will it be tomorrow? In 2020?
It's a tool that changes as needed to advantage blacks ( and to disadvantage whites).

The notion that the merits of the case should be the consideration has gone by the wayside as identity politics takes over the courts.

Posted by: ElViajero | May 28, 2009 9:39 AM | Report abuse

"""Dyslexia doesn't seem to be relevant at all"""

It is extremely relevant, because the basis of the argument is that Ricci and the others got higher scores then African Americans simply because the county wrote a "white" test.

When you think about it, it's the affirmative action types that are the racists to make such claims that black people can't pass white tests where firefighters are asked things like, how to put out a fire in a library rather then in a hip-hop club.

Or how to put out a flaming dessert with champagne vice putting out a free-basing comedian.

Ricci, regardless of his race passed the test because of hard work and study and investing resources into his success. Even after all he put into it, he still only placed 6th.

Posted by: Singer4321 | May 28, 2009 2:38 PM | Report abuse

"You can argue that Sotomayor is too empathetic to make a good justice, or you can argue that her ruling in Ricci was cold and unfair. But you can't argue both."

Obviously you can argue that she was empathetic to the wrong side- favoring the victims of lifelong injustice to become firefighters over the guy with reading troubles.

Posted by: staticvars | June 1, 2009 11:08 PM | Report abuse

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