On Impartiality And Empathy
Jack Balkin defends Sotomayor from some of her more thoughtful critics:
Gerson and Krauthammer can use Ricci's case to argue for impartiality in judging because they assume that the law clearly favors Frank Ricci. But it does not. An impartial judge reading the law impartially might find against him. But if that is so, what work is the distinction between empathy and impartiality doing in their argument? Impartiality may not be on Ricci's side; empathy may be. Or perhaps-- and this is the most likely scenario-- the law that applies to the case is not entirely clear.
The most controversial cases that come before the federal courts are usually not clear, even though the lawyers on both sides often persuade themselves that the law is clear and believe that an impartial judge will have no problem finding for their side. That is not surprising. What makes a case controversial is precisely the fact that people disagree strongly about what the law is and how it should apply. The problem is what to do with these cases, where both sides fervently claim that impartiality and objectivity are on their side and claim that the other side is mistaken and wants to twist or deform the law. Arguing for impartiality is simply not going to solve the problem.