Empathy and law, life experience and the judge's bench. Are they oil and water, or are they the necessary complements that make for a greater approximation of justice?

The question has been raised whether Judge Sonia Sotomayor's experience and a sense of empathy will impair her ability to render judicial decisions based solely on the law. Those who insist on keeping her Latina experience out of judicial considerations learned well what law-school professors tell their first-year students to dampen any idealistic expectations: that the law is about the law, not about justice. 

There are judges who see only the letter of the law, and there are judges who see the spirit of the law. If American jurisprudence had paid attention only to the letter of the law, Sonia Sotomayor would not be able to vote, let alone serve as a member of the bar or the bench. She would be cleaning Supreme Court and Senate restrooms. Without empathy on the benches of local and federal courts, the United States as we now know it would never have been. "All men are created equal" would still mean that all white men with property are created equal. Males without property don't count and don't vote. Women are not the equal of men; they don't vote. People of color are not human; they're property."

If the courts had relied solely on the criteria of original intent and precedent, the original definitions would never have changed. The courts would have overruled every legislative change as unconstitutional.

It starts at the local level
It makes a world of difference who's sitting on the bench of the Supreme Court. But it starts at the local level where ordinary people stand their ground, make their cases for justice, and where judges make decisions. Take the case of Judge Neil Riley, for instance.  It happened 40 years ago in Minneapolis Municipal Court.

Four American Indian men had been charged with disorderly conduct, disturbing the peace, public intoxication, resisting arrest and profanity in public. The men had been arrested at The Coral, an Indian bar on Franklin Avenue near Bloomington in South Minneapolis. It was a long-standing practice of the Minneapolis Police Department to pull the paddy wagon up to The Coral, haul people out of the bar, handcuff them, chain them to the light post on the street, shove them into the paddy wagon, and rough them up on the way to jail. No one had ever dared to challenge the practice in court.

Doug Hall, the late legendary attorney who subsequently co-founded the Legal Rights Center, tells the rest of the story. 

"These four men … decided that they wanted to stand trial.  ... [W]e drew Neil Riley as the judge. I think we tried [the case] for over a day.

"One of the things we tried to do in Municipal Court was to make the trial function like a District Court case. The system was to fill up the bull pen, and then bring all the accused before the judge at once. Justice was usually dispensed quickly. But we insisted that lawyers sit at the counsel table, that a witness stand be used, and that it run like a court. We were cutting into the spare time of the judge and the city attorney. We laid out how these guys had been victimized. Riley found them not guilty on all six charges against them, except one, and that was profanity in public. Judge Riley fined each of them $25 and then suspended the sentence!" ("Heroes Among Us," Peter Heegaard, Nordin Press)

Empathy led to the spirit of the law
Judge Riley and Doug Hall were white men whose empathy filled them with the spirit of the law.  They changed things on the streets of Minneapolis, where no American Indian had dared to fight for his rights; they changed an assembly line of presumed guilt into a court of law where justice hung in the balance.

If judicial decisions are made based solely on original intent and legal precedent, none of this would have changed. It was only when people fought to overturn the exclusive privileges of a white male landed gentry that the original intent and legal precedents were superseded by wiser interpretations of legislators and judges whose empathy and life experience shone the light of a higher law on the injustice of old intents and precedents.

Go for it, Sonia! Don't let the naysayers tell you to leave your experience outside the Senate hearing room or the Supreme Court. Let the law reflect a greater approximation of justice that was once unimaginable — not only to the Founding Fathers but in a Municipal Court just 40 years ago. 

The Rev. Gordon C. Stewart is Pastor of Shepherd of the Hill Presbyterian Church in Chaska. He is the moderator of Shepherd of the Hill Dialogues, and former executive director of the Legal Rights Center.