None of this is particularly controversial at Obama's University of Chicago or Sotomayor's Princeton. In elite academic settings, it is commonly asserted that impartiality is not only a myth, but also a fraud perpetuated by the privileged. Since all legal standards, in this view, are subjective and culturally determined, the defenders of objectivity are merely disguising their exercise of power. And so the scales of justice -- really the scales of power -- need to be weighted by judges to favor the "weak" and the "powerless."
Sotomayor's decision in the case of Ricci v. DeStefano is disturbing because it seems to affirm this judicial philosophy. The New Haven, Conn., firefighters who studied for and passed a promotion examination (including a Hispanic) were denied a benefit they had earned, entirely because of their skin color. Because they were not part of a group deemed "powerless," they were rendered powerless as individuals. Empathy turns out to be selective empathy -- not for human beings, but for social groups. Just imagine the frustration and anger of standing before a federal judge who is predisposed against your claims for racial reasons of any sort. A federal court should be one place where every individual -- black or white, pauper or Rockefeller -- is exactly equal in rights and dignity.
Racial injustice against African-Americans is still alive in America, and the wounds and disadvantages of slavery and segregation linger. The vision of an entirely colorblind society can itself be a kind of blindness, ignoring continuing struggles and continuing bigotry. Institutions should be able to address past and present injustice through some forms of affirmative action, including the aggressive recruitment of minorities and the use of race as one factor among many in subjective admissions and hiring decisions. But denying earned benefits because of race alone is an injustice that will never solve an injustice.
Concerns about the doctrine of empathy will not defeat Sotomayor -- and perhaps they should not defeat her. Obama democratically earned his choice, as other presidents have done. But the problems raised by selective empathy require a substantive (not harsh or personal) national debate -- and this requires Republicans to carefully, warily, enter Obama's trap.
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