Bork, Sotomayor, and the Double-Edged Sword of Empathy

My official position toward the Sotomayor confirmation hearings (and all judicial confirmation hearings) is annoyed indifference. When family or friends ask my opinion of how they’re going, I tell them I’ve got no interest in listening to a bunch of senators bloviate self-importantly while a nominee recites painstakingly rehearsed catch phrases designed to communicate as little substance as possible. The truth, though, is that this process fascinates me as much as it annoys me. Now that Supreme Court nominations have the potential to be ideological battlegrounds, I'm a reluctant (if understated) observer of the spectacle, devoid of real legal content though it may be. The Supreme Court nomination process is like a train wreck; it's awful, but you can't help yourself from watching it.

How hypocritical is my profession of indifference toward judicial nominations? Very: in the past year I read (voluntarily and with no apparent connection to my work) tomes about both the Thomas and Bork nomination processes. The latter was particularly illuminating, since I was too young to appreciate what was going on at the time, and my take on it was informed mostly by the standard popular narrative: Dems pulled a dirty smear campaign, and it worked to sink Bork.

But in Battle for Justice, Ethan Bronner suggests that the story of Bork’s bork-ing is a bit more complicated. Bronner argues that Bork did himself in more than the standard narrative lets on, and (more interestingly) what did Bork in was his obvious lack of empathy during the confirmation hearings. If this sounds bizarro-familiar to anyone in light of the tenor of the Sotomayor hearings, that’s because it should. I explore the very different roles that empathy played in the Bork and Sotomayor nomination processes in more detail after the fold.

Just as opponents of Sotomayor combed through her past opinions in an effort to substantiate their claims that she’s nothing more than a weepy, agenda-driven loony lefty, anti-Bork forces examined his judicial record to find any case that might make him seem like an unfeeling ogre, coldly indifferent to human suffering (it should be pretty clear by this point that I think both characterizations of the nominees are inaccurate political caricatures).

And the anti-Bork faction found just such a case: American Cyanamid, a West Virginia chemical company, determined that it could not lower the presence of lead in its facility to a level that would be safe for fetuses. American Cyanamid thus restricted women from employment on its premises, though it offered them the option of working there if they underwent voluntary sterilization, an option that was chosen by five women. OSHA fined American Cyanamid for the policy, arguing that offering sterilization to workers violated the prohibition against “recognized hazards” in the OSH Act. The matter eventually came before the DC Circuit, which held that a policy of offering voluntary sterilization did not amount to a “recognized hazard” within the meaning of the OSH Act.

I haven’t read the statute or the interpretation of the "recognized hazard" language in any cases, but at first blush the DC Circuit’s holding seems very plausible. And while the sterilization policy sounds pretty awful, if OSHA doesn’t have jurisdiction to fine the company for it, that has to be the result (plus, it’s not like American Cyanamid got off scot-free; in fact, the women who chose the sterilization option sued the company under Title VII and won). This happened a lot when I was clerking on the D.C. Circuit: a result below seemed pretty unappealing, but courts owe lots of deference to agencies, so on more than one occasion I found myself writing a bench memo suggesting that my judge uphold agency action that I didn’t like very much.

Of course, none of these points about the law’s substance mattered in the context of the political Kabuki that is the nomination process. As Bronner argues, American Cyanamid lent plausibility to the most extreme caricatures of Bork. It allowed his opponents to portray him as the kind of guy who was indifferent to women’s rights and worker’s suffering—after all, he willingly upheld a company policy forcing women to choose between their ovaries and their jobs. As one of the other judges on the (unanimous three-judge) panel said, “They made Bob look like some kind of Nazi scientist in that case. It was inexcusable.” Bronner further suggests that in the actual confirmation hearings, Bork’s responses to questions American Cyanamid epitomized the reason that he was unable to rally any public support. Talking about that and other issues, he evinced indifference to the actual human consequences of his decisions, instead coming off cold and (god forbid) professorial. Bork’s downfall, in other words, was that he lacked empathy.

I don’t need to say much to illustrate why this seems particularly strange looking back from today’s perspective. Since Obama’s unfortunate turn of phrase in introducing her, Sotomayor has been afflicted by the (consummately unfair) suggestion that her sympathies will somehow overwhelm her capacity to reason with any objectivity about the law. For her, empathy is seen as a threat to her judicial capacities—just the opposite of Bork.

What do the very different roles played by empathy mean about the judicial confirmation process? Assuming Bronner’s account is right (and I know that historians of the Bork nomination may disagree; in the interest of full disclosure, Bronner’s is the only book-length account I’ve read other than Bork’s own narrative in The Tempting of America), there are two possible explanations for the divergence.

First: a gender story. The judicial nomination process, at its worst, relies on awful stereotypes to demonize nominees in order to drum up enough opposition to defeat them. For Bork (or any man), this meant portraying him as a soulless authoritarian who was completely indifferent to the plights of any person or group; on this extreme account, his downfall was his lack of empathy. For Sotomayor (or any woman), this means portraying her as dominated by her emotions and unable to apply logic or see objective truth; on this extreme account, her downfall would be her surfeit of empathy. Empathy plays different roles depending on which simplistic gender stereotype a Senator or interest group seeks to exploit.

Second: a changing political landscape story. The judicial nomination process operates against a very different background today than it did in the mid-80s. Then, the impact of the Federalist Society, Reagan/Bush/Bush II judicial appointments, and the rise of Republican neo-populism generally had not yet hit the American judicial and political landscape. We were still at the tail end of the era defined by the Warren Court (even if it had been attenuated by the Burger Court), so there was still room for a jurisprudence that acknowledged a role for sympathy for individual litigants (after all, Justice Blackmun of “Poor Joshua!” fame was still on the Court at that time). The intervening years have seen a sharp right turn in American jurisprudence, and so currently judicial nominees have to present themselves more in line with a conservative conception of ideal judicial philosophy (strict adherence to text, and possibly also history, regardless of whether this is simply a proxy for different substantive precommitments).

Each of the foregoing are simplified narratives meant to give different possible explanations for the puzzlingly different role empathy played in the Bork and Sotomayor nominations. There may be better explanations, and I’d be interested to hear them. Regardless of the explanation, though, it’s interesting to see how empathy has come full circle--from an essential quality whose absence helped sink a nominee to a problematic quality whose presence could sink a nominee--in our Supreme Court nomination process.