The Heart/Brain Calculus

It’s so true, Emily. One of the interesting things about that other first Hispanic Supreme Court justice, Benjamin Cardozo, is that he spent a lot of his time agonizing about the exact same things that plagued Judge Sotomayor in her speeches: What is the right ratio of heart to brain for judges? He once said that appellate judges should treat individuals’ grievances as if they were merely the “algebraic symbols” from which a “formula of justice” would emerge. But in a famous 1921 speech, he also said: “My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. … If you ask how he [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself.”

I suppose if Cardozo were on the hot seat today, they would be grilling him about why his experience and study and reflection didn’t make him biased. Meantime, as John notes, score a point for Sotomayor for distancing herself from President Obama’s complicated “empathy standard.” She said pretty clearly: “I would not approach judging the same way President Obama does. … It’s not the heart that compels conclusions in cases, it’s the law.”

Oh, wait. Sen. Graham just asked her whether she’s a terror. We may be having a moment. Says Graham: Lawyers in her court “find you difficult and challenging more than your colleagues.” And, “Do you think you have a temperament problem?”