an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Michael Gerson unwittingly reveals the problem of the distinction between impartiality and empathy that Sotomayor's opponents are trying to maintain. Gerson, like Charles Krauthammer, argues that the law should be applied as it is, impartially, and not bent or altered out of a misplaced empathy for particular persons or groups.
Ironically, in defense of their position, both of them offer the case of Frank Ricci, the dyslexic firefighter who worked so hard to pass New Haven's promotion test, and lost his chance when New Haven discarded the test because it resulted in no promotions for blacks. Ricci sued under Title VII, the federal employment discrimination statute. Ricci is revealed to us as a person of character who overcame setbacks of his own, who got a raw deal from the city of New Haven, and who deserves our empathy, as well as our sympathy. Indeed he does.
But what if the law surrounding the federal employment discrimination statute, Title VII, is fairly clear, so that under an impartial application of the law, Ricci loses? That might explain why the Second Circuit panel (that included Sonia Sotomayor) that considered Ricci's case affirmed the lower court's decision without opinion. What if Judge Jose Cabranes and other judges on the Second Circuit were moved by Ricci's plight and the deep unfairness of what New Haven had done and argued for rehearing the case on the grounds that the current interpretation of the law is wrong and should be altered? And what if five members of the Supreme Court, also moved by empathy to Ricci, and the unfairness of current doctrine, do not apply the law as it currently stands, but alter it so that Ricci can prevail? Under those circumstances, who is administering justice without respect to persons, and doing equal right to the poor and to the rich? It is Sotomayor and the second circuit panel who are being impartial, for they are applying the law as it is; it is Sotomayor's critics who want to change the law out of empathy for Frank Ricci and his plight.
But, you might respond, the law of Title VII is not clear. One can make arguments on both sides. This is especially so because behind the statutory question are arguments about how the Constitution applies when the employer is the government. Perhaps the judges in the second circuit panel honestly thought that the law was clear, and affirmed, thinking they were being impartial. But if so, then they were just mistaken. And if the law is not clear, then surely we should take into account the real world consequences of the law, and interpret it so that good people like Frank Ricci are not badly treated. Simple justice requires this.
Perhaps you are right about this. But this brings us to the central point. 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.
One gets the sense in Gerson and Krauthammer's arguments, though, that they are running together two different ideas of impartiality. One principle is that judges should be impartial in interpreting the law-- they should apply the law no matter what its content happens to be, regardless of who comes before them. The second idea is that the content of the law should have a certain character-- it should allow for no distinctions whatsoever based on group membership or personal characteristics. But suppose the law allows for such distinctions, for example, as current law does for certain affirmative action programs. Then the first principle of impartial application of the law whatever it may be conflicts with the second principle of neutrality with respect to groups, or, in this case, colorblindness. This problem happens all the time. Krauthammer gives the example of the progressive income tax, which taxes the rich proportionately more than the poor. If a judge was asked to apply that law impartially, he or she would not be treating rich and poor alike substantively, for the rich person would have to pay more. Rather, the judge would be impartial formally, applying the same law (which makes a distinction based on income) to rich and poor alike.
Which brings us back to the central problem: If you are impartial in the sense that we normally expect of judges, applying the law fairly as it is written without respect to persons, you might well find against Frank Ricci. Of course, as I noted before, it is far more likely that the law is actually unclear, which is why the Supreme Court is taking the case in the first place.
Faced with this possibility, one assumes Gerson and Krauthammer would say that the law is an ass if it finds against Frank Ricci. Where the laws are unclear, or there are plausible arguments on both sides, we should interpret laws to promote what is just, and not what is unjust. I have no doubt that Sonia Sotomayor would agree with these sentiments completely. But if so, this pretty significantly alters the nature of the debate. What separates her from her critics, then, is not that one side believes in impartiality and the other believes in empathy. What separates them is that they disagree about what is just and unjust. Posted
by JB [link]