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Empathy, the Truth Behind the Hypocrisy

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The Republicans are searching through Judge Sotomayor’s old speeches and party conversations to find trash to dump on her in their talk radio slime sessions. For honest people, it is more important to look at and consider what she actually said in legal decisions she wrote while she’s been a judge, deciding cases.

When it benefits them, Republicans like to focus on official conduct and ignore people’s unofficial comments and conduct. Just the reverse of their tactics with Sotomayor. Take, for examples, Mark Foley, Larry Craig, and David Drier. All three were party loyalists elected on pro-bigotry promises. As elected officials, each promoted and voted for anti-gay legislation. And in their private lives, each is homosexual, practicing the very sexual conduct their public lives seek to criminalize.

Because each is also staunchly supportive of the Republican policy of favoring corporate interests and profits, the party worked hard to publicize their official anti-equality policies

as office-holders, while working equally hard to cover up their homosexual lives away from the office (or in Drier’s case, in the office but behind closed doors).

Amazingly, the people who don’t object to David Drier having homosexual sex in his congressional office are the same people who were horrified by Bill Clinton having straight sex in his office!

To see just how sincere the complaints are about Sotomayor’s speeches, we need to see whether she actually applies any discriminatory standards in her judicial decisions. The Republican rants about her have been about the speeches, and not the decisions. Do you imagine that this might be because her decisions as a judge don’t support the Republican official policy of claiming that she’s a racist or a sexist?

Happily, her decisions will get in-depth coverage and discussion during her confirmation hearings. So there is little reason to address them here. But before those hearings, we’re going to hear a lot more about the claim that judges should not be “empathetic” when they consider cases. Rather than using the word “empathy” in a vacuum, without definition or context, let’s consider what happens in the real world.

Even the most ardent anti-war activist must concede that the soldiers who have been sent to Iraq and Afghanistan are following orders and are acting consistently with our noble tradition that the military is subordinate to and obedient to the civilian government. Think how rare this is around the world. In too many nations, the military tells civilians what to do. But not here.

So what should we do when one of those loyal, obedient soldiers comes home with devastating injuries – limbs blown off, burns leaving only a monster’s face, brain trauma leaving no ability to speak, or the most common, Post Traumatic Stress Disorder. How should the Courts rule when the injured soldier’s spouse files for divorce and argues that a legless veteran cannot care for the children and should be denied custody? Should children be protected from the sight of a parent who was so burned in an IED attack that they can no longer recognize that parent’s face?

This is not a problem which came up with the oil wars. Think of the thousands of men, like Ron Kovic, who came back from Korea and Vietnam to live lives in wheel chairs. For most of our history, our laws told such men that one reward for their patriotic service would be lifetimes of restricted contacts with their children, restricted rights to participate in their children’s lives.

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Ron Kovic

Ron Kovic

It was 1979 when the California Supreme Court ruled that a Family Law Court could no longer deny custody to a father simply because he was in a wheelchair. The California Supreme Court reversed the decision of a trial Judge who ruled that, as a matter of law, a wheelchair bound father could not be an adequate father and should be denied custody of his children.

1979! Just 30 years ago. The trial judge wasn’t a bigot, wasn’t stupid, wasn’t unusual. But he came to the case and to the Court with a belief that physical handicap limited a person’s ability to parent adequately. Other courts have felt the same way about blind parents and deaf parents. And reflect please, just briefly, on the root of the word ‘hysteria’ and how we use that word.

Of course, in 1979, there were plenty of people who thought that the California Supreme Court was acting recklessly. It was granting human rights to people with “less than human” abilities. Such people were horrified that “activist judges” would force the majority “healthy” population to accept “those people” as equals.

Now, 30 years later, we have new cases challenging whether “less than human” groups should be given human rights. So it’s important to think about why the Justices of the California Supreme Court decided to grant wheelchair bound parents equal human rights back in 1979. The story tells us about Judge Sotomayor.

Every year, thousands of cases are presented to the Supreme Court, with petitions for review. There is almost never a “right” to have the Supreme Court review your case. You have to beg them to look at it. And every year, 90% of the requests are denied. The Court simply doesn’t have the time to study every case. So they have to pick and choose the cases which will have the most impact on society and uphold the best legal principles.

The judges have a bunch of research clerks who help them decide what cases to take, how to research the law, and how to write the decisions. Getting to be a Supreme Court research clerk is a high honor for a law school graduate. Only the best and brightest apply. And only the brightest of those applicants gets selected. One of the California Supreme Court law clerks in 1978 was confined to a wheel chair. His brain was active and sharp. He could do the legal paperwork despite his physical condition. The Supreme Court justices saw that truth every day, working with him.

When the justices were presented with a trial Judge decision which said that, as a matter of law, a man in a wheelchair was incapable of handling important responsibilities, they could see, from their own experience, that the decision didn’t reflect real world reality. Because they could understand the conflict between the reality of the father’s plight and the narrow-minded focus of the trial judge, they could see that a legal issue had arisen which could affect many, many people. They could see that thousands of Vietnam War veterans might be caught in similar situations. They could see an injustice in the system of Family Law. They had empathy for the parents and children who’s lives would be affected by this injustice.

As an interesting aside, William Carney had been a vibrant, active father. The Court noted his IQ of 127. The injuries which led the trial Judge to rule that Mr. Carney couldn’t have custody of his children were sustained while he was serving in the military reserve.

Thirty years after the California Supreme Court had the empathy to take a case involving the rights of a man injured while serving his country, the Republicans are telling us that such empathy is a bad thing. These are the same Republicans who showed no empathy when voting to send our troops to war with inadequate body armor. The same Republicans who let the Bush administration pour Veteran’s Services money into no-bid corporate profits, while reducing medical care for injured vets coming back from Iraq and Afghanistan. Is that the “freedom from empathy” we want when deciding who should serve on the U.S. Supreme Court?

Tom Hall

Tom Hall