At his Senate confirmation hearing, Sam Alito used his opening statement to emphasize how his experience as an Italian-American influences his judicial decision-making (video is here):
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country" . . . .
When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.
Two weeks ago, Alito cast the deciding vote in Ricci v. DeStefano, an intensely contested affirmative action case. He did so by ruling in favor of the Italian-American firefighters, finding that they were unlawfully discriminated against, even though the district court judge who heard all the evidence and the three-judge appellate panel ruled against them and dismissed their case. Notably, the majority Supreme Court opinion Alito joined (.pdf) began by highlighting not the relevant legal doctrine, but rather, the emotional factors that made the Italian-American-plaintiffs empathetic.
Did Alito's Italian-American ethnic background cause him to cast his vote in favor of the Italian-American plaintiffs? Has anyone raised that question? Given that he himself said that he "do[es] take that into account" -- and given that Sonia Sotomayor spent 6 straight hours today being accused by GOP Senators and Fox News commentators of allowing her Puerto Rican heritage to lead her to discriminate against white litigants -- why isn't that question being asked about Alito's vote in Ricci?
Also: if empathy is irrelevant to judicial decision-making, why are GOP Senators calling Frank Ricci as a witness at this hearing? Since he's obviously not there to testify about the strict legalistic doctrines governing his claims, but instead is only there to trumpet the facts that make him "sympathetic" so that people will emotionally react against Sotomayor's ruling (his dyslexia, the amount he spent on books and tutors, his hopes for a promotion), isn't everything he has to say totally irrelevant pursuant to the GOP's alleged judicial principles?
Good points, but I would add that there
is one critical difference between Alito's statement and Sotomayor's.
Alito didn't explicitly say that a wise Italian man would make better
decisions than an Anglo judge. That's is what irked many people about
Sotomayor's comment. Truth be told, experience does make people wiser
about certain things, but Sotomayor's statement sounded vaguely like
she was saying that being a Latina lady makes her wiser than white
judges in all things. That is not what Alito said or implied. Some
people have given Sotomayor the benefit of the doubt and assumed from the
context of her statement that she merely meant that being a Latina lady
made her wiser about certain things.
In any case, none of this negates what Greenwald is saying. Personal experience can be a factor when judges make decisions. Conservative judges, including Alito and Thomas, have proudly admitted as much.
To use an example that has been offered many times before, a female judge might have a more sensitive appreciation for what constitutes reasonable grounds for strip searching a 13-year-old girl. I think that any time judges talk about "a reasonable person," they are, wittingly or unwittingly, relying on their own experience to a great extent. What worries me is the judge who might be so damned thickheaded that he doesn't realize the extent to which his own experience informs his judgment. That lack of awareness makes it very difficult for a judge to consider the possibility that views other than his or her own might be just as "reasonable."
There is something else that I haven't heard raised about conservatives who insist that application of the law can or should be informed only by the text of legislation. Conservatives (though not all of them) have generally been enthusiastic supporters of the use of victim-impact statements in criminal sentencing. Advocates of victim-impact statements believe that judges can sometimes make more just sentencing decisions when they hear about the subjective experience of the crime victim. This position represents an implicit acknowledgment that written guidelines are not always sufficient and that empathy can, under some circumstances, help a judge to arrive at a more just decision within the broader guidelines of the law.
A Purely Pragmatic Political Observation:
It probably isn't a wise idea for pink-faced, male Southern senators to harangue and lecture to a smiling, almost Buddha-like, female, minority nominee. It may not be fair, but it could leave many viewers feeling that their worst fears about Republicans are correct. The situation evokes some unsettling stereotypes of historical relations between in-groups and out-groups in this country.
Again, that might not be fair, but I'm speaking here about the political dimension of this. What's red meat for the conservative base, may be quite unappetizing to the rest of America. The Senators have a right to do this and they have a right to say to hell with anyone who doesn't like it. And these harangues might play well with their local constituents. Perhaps that's all some of these senators care about, but I think they're making a mistake as a party that just got clobbered in national elections.