Brain Science and Sotomayer

Should a judge have empathy for legal defendants? Be able to experience compassion and understanding for the motives that might have driven an offender to commit a particular crime?

Sonja Sotomayer, Barack Obama’s nominee for Supreme Court Justice, has been questioned repeatedly about whether she could be objective on the bench. White southern Senators like Alabama’s Jeff Sessions (who once called the NAACP an un-American organization) have accused her of harboring racial prejudice because she remarked that a “wise Latina woman” might make better decisions than a white man. This is racism in reverse.

But Sotomayer’s critics have also fretted that the President listed “empathy” as among her qualifications to serve. It’s a sexist ploy. Women are stereotyped as soft-hearted rather than hard-headed, governed by emotion rather than reason. So it’s implied that Sotomayer will be unable to separate her personal feelings from the ability to do her job.

Actually, judges need empathy, which is part of what makes us fully human.

Neurologist Oliver Sacks describes the case of a judge with a brain impairment that stripped him of the ability to feel emotion. “It might be thought that the absence of emotion, and of the biases that go with it, would have rendered him more impartial—indeed, uniquely qualified—as a judge,” Sacks comments. “But he himself, with great insight, resigned from the bench, saying that he could no longer enter sympathetically into the motives of anyone concerned, and that since justice involved feeling, and not merely thinking, he felt that his injury totally disqualified him.”

A judge without empathy would be working with half a brain---entirely lacking the emotional intelligence that lets us enter into each other’s joys, sorrows and inner struggles.

That’s what the attacks on Sotomayer seem to be: the confused conjectures of a partial brain.