The 26th Mile: Empathy and the Immigration Decisions of Justice Sotomayor

Abstract

What role does judicial empathy play in assessing a judge's qualifications for the highest court in the land? While President Obama claimed it as the greatest of virtues, his critics condemned it as a disqualifying vice. During her confirmation hearings, Republican senators suggested that Justice Sotomayor's "wise Latina" comments and her decisions in a handful of cases were better indicators of her judicial philosophy than the large body of cases she had decided during her 17 years on the bench. This article examines a number of the published immigration decisions of Justice Sotomayor that shed light on her judicial philosophy. It uses a 2008 case to frame her current approach. It then looks at her decisions in several different areas, including asylum and refugee law, the immigration consequences of crimes, citizenship law, motions to reopen, and criminal prosecutions for immigration violations. Her immigration decisions demonstrate an evolution in her thought processes, as her analytical approach became more defined by the limits of the law than by its possibilities. They also demonstrate, however, a firm commitment to process. Finally, this article explores empathy as a judicial virtue, its place in Justice Sotomayor’s published immigration decisions, and its treatment during the confirmation process. It looks at statements by her critics that treated empathy as the antithesis of impartiality and at her response. Rather than embrace her earlier statements, she distanced herself from them and from President Obama's own remarks. Thus, the opportunity for a meaningful discussion of the role of empathy as a measure of judicial excellence and as one component of impartiality was lost. In the end, her published opinions became the best way to evaluate her judicial philosophy and accusations of judicial bias.

Keywords: immigration asylum confirmation