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| Empathy |
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| Written by Gerard V. Bradley |
| Monday, 13 July 2009 08:39 |
 Today’s first round of hearings for Supreme Court nominee Sonia Sotomayor will be a bit tedious. Much of the day will be taken up with the Senators’ opening statements. These will probably include some real insights and lessons. But, unfortunately, these gems will be obscured by the usual ration of senatorial bloviating and preening. Then we should expect Judge Sotomayor to deliver her opening statement. This is her chance to tell her “story”. Sotomayor is no bloviator, and her “story” is indeed remarkable, even compelling. The tedium here will owe to repetition, for even the details of her life and learning and work have been rehearsed many times in the media. See, just for example, the extensive profile of Sotomayor in last Friday’s New York Times. I shall nonetheless receive Sotmayor’s story with, well, great empathy. As the immortal Yogi Berra would say, it will be “like deja vu, all over again”. That is because (yes), I have by now read about Sotmayor’s life several times. But it will also be because the main outlines of her story are mine too. Sotomayor and I are the same age. We both grew up in working class outer-borough ethnic families (mine, Irish in Brooklyn; hers, Puerto Rican in the Bronx). We attended Catholic schools for twelve years, followed by Ivy League college and then Ivy League law school. We both moved to the Carroll Gardens neighborhood of Brooklyn after graduating from law school. And we both had the privilege of serving as Assistants to New York County District Attorney Robert Morgenthau, an extraordinarily fine public servant who is retiring at the end of this year. Our service as ADA’s overlapped. Sotomayor and I both served in the rough-and-tumble Trial Division during a real crime crisis in New York City. Because we were in different Trial Bureaus we had (as far as I recall) minimum contacts. But, because of the nature of the work and of the way staffing was done, I am certain that we did exactly the same work. Only the names and docket numbers and courtroom addresses changed. Now, I do not claim to share (or even to know much about) Sonya Sotomayor’s psychological and emotional make-up. For that reason I cannot say that we had the same experience as Assistants to Mr. Morgenthau. But I think I can say something useful about the way in which any functioning ADA (such as Sonya Sotmayor) would have had to deal with her or his “empathy” for those who came before the courts. In short: any feelings an ADA had for and against all the characters who came across the courtroom stage – defendants, witnesses, police officers: everyone – had to be to be very deeply sublimated. They did not have to be eliminated (even if that were possible). But they had to be made inert for all practical purposes. There were a lot of reasons why an ADA had to acquire this (let’s call it) ascetical discipline. One was sanity: if an ADA did not acquire this discipline he or she would go nuts. Every day in those days was full of encounters with pathetic and/or dangerous and/or evil and/or needy people. Many suffered from the dread emotional and physical effects of being a crime victim. Some defendants were diabolical, some were harmless, and most were somewhere in between. If an Assistant District Attorney opted to “feel people’s pain (one notion of “empathy), there would be no stopping short of an emotional breakdown. And one had to guard against selective or occasional “empathy”, for fear that one would treat people who deserved to be treated with equal concern and respect differently, according to one’s subjective reaction to them. Other players in the system, such as the Legal Aid Society lawyers and most judges, adopted a starkly adversarial stance towards ADAs. One often felt like telling judges where to go, and challenging defense lawyers to stop whining about their allegedly innocent clients. But professionalism (and Mr. Morgenthau) dictated that we not act on those particular feelings. One had to suck it up, and play on as if no one were hectoring or trying to intimidate you. (Defense lawyers specialized in the former; judges, the latter.) The job which Sotomayor and I performed required us to make spot-on judgments in a hurry on inadequate information, and to do so all of the time. These judgments were often difficult and they always affected other people, sometimes for a very long time. Emotionally identifying with (or against) anyone in particular got in the way of doing this job. All of those affected were entitled to be treated fairly, according to law, and as persons deserving of equal human respect (even if guilty as hell of a heinous crime). So, to cite a small example, it was good practice to always refer to the defendant by last name, prefixed by “Mr” or “Ms.”, and to frown (or at least not condone) some police officers’ tendency to dehumanize defendants by calling them “mopes”, or some other unflattering term of local art. I am not sure where these observations about the role of “empathy” in Sonya Sotomayor’s first professional job fit into an overall assessment of her judicial philosophy or fitness for the Supreme Court. I hope, however, that they help frame the debate at this week’s hearings about reason, conviction, and emotion in the life of the good judge. ****************** A Postscript: there is storm brewing over the reported fact that Sonya Sotomayor operated a modest legal practice out of her Brooklyn apartment during her service as an ADA. Some say that this was inconsistent with office policy, which forbade such undertakings (as a potential conflicts of interest, I suppose). My recollection is that doing such work was contrary to office policy; in fact, I was once rebuffed by my own Bureau Chief when I inquired about whether I could do such work to make ends meet for my family. But I do not recall ever seeing an office-wide policy in writing, and I would defer without hesitation to whatever Mr. Morgenthau declares to have been the rule at the time Sotomayor and I worked for him.  After practicing as a prosecutor in Manhattan, Gerard V. Bradley joined the law faculty at the University of Illinois. He moved to the University of Notre Dame School of Law in 1992, where he is a professor of law. He has published more than one hundred scholarly articles and reviews. |
| Last Updated on Tuesday, 02 March 2010 17:04 |
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