In Support of Empathetic Umpires

To her critics, Judge Sotomayor confessed sacrilege in professing to draw wisdom from her life experience, including her background as a Latina. Proper judicial reasoning, critics say, bases only on (A) the text of the law and (in constitutional interpretation) and (B) the original intentions of the law's authors. If subjective factors like experience or empathy ever lead to a different result than textual interpretation, then relying on that subjectivity is an improper refusal to follow "the law." This is the logic of John Roberts's "umpire" metaphor at his 2005 confirmation hearing: as a Justice he would be like an "umpire," because "it's my job to call balls and strikes and not to pitch or bat."

To begin with, one case is devastating to the notion that, as Wendy Long argues, Judge Sotomayor doesn't "even believe in judicial impartiality in the first place .... [S]he's not even going to try to be impartial" because the way she approaches cases lets her "substitute [her] own notions of ‘justice' for what the law actually says." In Pappas v Guiliani, Judge Sotomayor, alone among four judges (the district judge and three appellate judges), voted not to dismiss a fired police officer's First Amendment claim. Officer Pappas had been fired for responding to another police force's charitable solicitation with a tirade about how (among other racist views) the "Negro wolf" is "destroying American civilization with rape, robbery, and murder." Judge Sotomayor took the very clinical view that even hateful speech on public issues may be protected against retaliation. If Judge Sotomayor were so prone to ruling based on racial sympathies, she never would have gone out on a limb for someone like Pappas. Agree or disagree with her Pappas ruling, clearly Judge Sotomayor showed an excellent ability to issue a purely legal ruling divorced from her subjective view of the individual.

But there is a role in judging for life experience, empathy and practicalities, as shown by two Sotomayor decisions among the most-cited in the circuit discrimination caselaw: Raniola v. Bratton, a 2001 decision cited by almost 200 other judicial opinions; and Cruz v. Coach Stores, a 2000 decision cited by almost 900 other opinions.

In Cruz, Judge Sotomayor reinstated a dismissed claim of hostile work environment harassment, on two important rationales. First, a hostile environment can base on biased actions against multiple different minority groups, not just the plaintiff's group: "Because the crucial inquiry focuses on ... the workplace environment as a whole .... Remarks targeting members of other minorities ... may contribute to the overall hostility of the working environment for a minority." Second, while "the district court apparently considered the instances of sexual harassment in this case too vague or isolated to support a hostile work environment claim," Judge Sotomayor explained that "[g]iven the evidence of both race-based and sex-based hostility, a jury could find that Bloom's racial harassment exacerbated the effect of his sexually threatening behavior." With these holdings, Judge Sotomayor displayed a perspective on the realities of being a workplace minority that the district judge, a respected and talented legal thinker, had failed to see himself.

In Raniola, Judge Sotomayor similarly reinstated a female police officer's dismissed claim of hostile work environment harassment and workplace retaliation. The district court's dismissal based partly on a finding that the gender-based hostility wasn't necessarily offensive enough. Judge Sotomayor explained that the claim should not have been dismissed before a full trial, because a jury could have found a sufficiently hostile environment in (among other forms of hostility) the Captain referring to domestic violence victims as "bitches" and in multiple sexist epithets ("cunt," etc.) and sexual insults being written about Officer Raniola on the police ledger as well as on posted flyers in the precinct. The district judge had depicted these as "barnyard street expletives," displaying how a lack of life experience, empathy and understanding of workplace practicalities can lead to less-than-wise judging.

Cases like Cruz and Raniola are why I've never liked Chief Justice Roberts's "umpire" metaphor depicting a judge's job as merely calling balls and strikes. A ball/strike determination is whether a thrown baseball passed through a defined rectangle - an objective determination completely unlike the judgment whether Ms. Cruz's or Officer Raniola's years of harassment was abusive enough, or sufficiently sex-based, to be actionable as discrimination. There certainly are "ball/strike" calls judges make, like whether a defect is within the "strike zone" of a printed warranty; tens of thousands of such cases predominate the nation's small claims courts but almost never reach the U.S. Supreme Court, which hears fewer than 100 cases a year that it chooses in order to resolve issues on which lower courts, or other branches of government, have reached inconsistent conclusions.

The Justice-as-umpire analogy makes sense only if we assume the following. Assume the written balls-and-strikes rule says only, "a reasonably hittable pitch shall be called a strike," perhaps because the rulemakers ("legislators") aren't very good drafters, or passed a vague provision as some sort of compromise. Assume that as a result of the rule's vagueness, umpires on the field ("district courts") are applying different, inconsistent strike zones. Assume that fortunately, a committee of nine senior, respected umpires work not on the field, but in a D.C.-based office ("Supreme Court"), tasked with clarifying inconsistent interpretations by handing down binding interpretations of (for example) the "reasonably hittable" rule, perhaps that "a ball pitched above batter's knees but below the chest, and above home plate, is ‘reasonably hittable' enough to be a ‘strike'." Sonia Sotomayor has been nominated not to be a ball-and-strike-calling umpire, but one of the senior umpires tasked with using their judgment to clarify our most ambiguous rules, and decide our toughest cases, by handing down wise, prudent decisions. For that kind of "umpire," we do well to have judges with the life experience, empathy, and practical understanding that Judge Sotomayor brings to the job.