Sonia Sotomayor’s “wise Latina” remark, in a speech made in 2001– “I would hope 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”–undoubtedly set the tone for her confirmation hearings this month. But her retraction of the same remark in the face of sustained grilling from the Republican camp has merely preserved the status quo on the subject of justice and empathy.
Admittedly, it was another sound bite that got the controversy going in the first place. Barack Obama in 2005, at the confirmation hearings for Chief Justice John Roberts, was quoted as having said that in a certain percentage of judicial decisions, “the critical ingredient is supplied by what is in the judge’s heart.” His choice of Sonia Sotomayor as Souter’s replacement on the Supreme Court has been viewed by many as a reflection of that belief; and his candidate, by extension, as a vehicle of that idea.
Sotomayor effectively rebutted the suggestion that she would allow subjectivity to color her judgments and argued beyond a reasonable doubt that her rulings would be governed by the law rather than her heart, and that they always have been. There is little doubt that she will be confirmed in August. And justifiably so. She is cuts an impressive figure and has a sound track record. But the issues surrounding her hearings leave an important question unanswered: is there no place for empathy and “heart” in matters of law?
This is a question that is at least 2000 years old. It is the legal and ethical question that forms the basis of Sophocles’ Antigone, and it is one that Sophocles does not answer unequivocally. In Antigone, the eponymous heroine’s brother, Polyneices, has been denied burial rites by their uncle and King of Thebes, Creon, who has declared Polyneices a traitor and enemy of the state. Creon has declared an edict forbidding anyone from burying his nephew’s body on pain of death. Antigone defies the edict and buries her brother. For it wasn’t Zeus who declared the edict; and “Nor did that Justice, dwelling with the gods/ beneath the earth, ordain such laws for men.” Creon’s adamant stance is that she has defied the law of the state and must be punished, even if she is his flesh and blood: “Sister’s child or closer in blood/Than all my family clustered at my altar/worshiping Guardian Zeus/She’ll never escape . . . the most barbaric death.”
Sophocles offers up the suggestion that Creon’s laws are flawed because they do not permit the emotions any place in deliberations over justice. From the law’s perspective, that Polyneices was a traitor to Thebes was enough justification to deny him burial rights; but from Antigone’s perspective, the perspective of the heart, of emotion, of empathy, the law was ironically doing a great injustice to a beloved family member and so had to be flouted in the interests of a higher form of justice: “. . . if I had allowed,” she says, “my own mother’s son to rot, an unburied corpse—/That would have been an agony!”
In other words, law, to Sophocles, is not as cut and dried as the honorable American senators would have it. From the perspective of Greek tragedy, there can be situations in which the law falls short and when the heart must take over. This is one of literature’s dangerous lessons, and no doubt the very reason why Plato wanted to banish the poets from his ideal republic. But the issue appears to be far from resolved, even with the possibility of a wise Latina one day sitting in the Supreme Court.