What was the role of empathy in a protective order against a father?
In a much-discussed 2001 speech at the University of California, Berkeley, Supreme Court nominee Sonia Sotomayor singled out a Minnesota case as an example of the kind of difference diversity on the bench can make.
Sotomayor's views about the role life experiences can and should play in judges' decisionmaking will no doubt get a spacious airing during this week's Senate confirmation hearings -- which makes her Minnesota case in point of some interest.
It was in the Berkeley speech, after all, that Sotomayor made her most celebrated and controversial remark. "I would hope," she said, "that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
A few paragraphs earlier, she had said this:
"The Minnesota Supreme Court has given an example of this [diversity among judges making a difference]. As reported by Judge Patricia Wald, formerly of the D.C. Circuit Court, three women on the Minnesota Court, with two men dissenting, agreed to grant a protective order against a father's visitation rights when the father abused his child."
Finding a case that fits this description has proved a bit of a challenge. Even Wald, who generously scanned her files, was unable to identify it. According to White House staff, Sotomayor named the wrong court. The decision in question, they say, is Hall vs. Hall, a Minnesota Court of Appeals ruling from 1987. (The Minnesota Supreme Court declined to review it.)
Even assuming that's the right case, Sotomayor's description was imprecise. In Hall, a 14-judge "en banc" appeals panel upheld a lower court's protective order on a 7-7 vote. Four male judges joined three female judges on the prevailing side. Seven judges, all male, dissented.
All the judges agreed there was no evidence that the father had ever abused his children.
The divorced couple's relationship, however, was horribly troubled. Several years earlier, the husband had beaten his wife "on numerous occasions" and threatened her life, at least once holding a gun to her head. He had undergone court-ordered domestic abuse counseling, and the violence had stopped. Threats and verbal abuse had not, according to his ex-wife. That led to the new protective order limiting the father's visitation rights, which he appealed.
To read the opinions in Hall vs. Hall is to be reminded that legal disputes are almost always complex and challenging. The dissenters were chiefly bothered by what they believed was the denial of due process for the father in what they deemed a superficial lower court hearing.
The court's ruling, on the other hand, found the hearing sufficient and focused on the frightening nature of the threats that allegedly persisted.
What to make of it? Sotomayor seemed to suggest that the genders of the judges influenced their view of this case. I wouldn't jump to that conclusion. But looked at that way, Hall vs. Hall suggests a few observations:
The male judges who considered this case ended up rather closely divided on it. All three female judges on the panel ruled for the ex-wife.
Does that suggest that the women judges may have had a fuller understanding of the danger and trauma women and children suffer in the face of threats and ugly tirades from a man with a history of violence? And that they helped male colleagues comprehend it? It certainly seems possible.
Or is it possible that "empathy" for certain litigants could sometimes lead a judge to overlook basic considerations of legal rights and fair play? "It is because of the great powers of the courts in these [domestic abuse] cases that due process is vital," wrote one of the dissenting judges.
It is because of the great powers of the U.S. Supreme Court that a vigorous exploration of Judge Sotomayor's thinking in these matters is in order.
D.J. Tice is the Star Tribune's commentary editor. He is at firstname.lastname@example.org.
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