Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 8, 1 August 2009 — Empothy vs. judicial activism [ARTICLE+ILLUSTRATION]

Empothy vs. judicial activism

Walter M. Heen TrustEE, O'ahu

Hawaiians need to be very interested in the confirmation hearings for Appellate Iudge Sonia Sotomayor, President Obama's appointee to the United States Supreme Court. With the impending passage of the Akaka Bill by the Congress and the president's affirmation of his intent to sign the bill, the complexion of the Supreme Court going forward is extremely important, since we ean expect that there will be legal challenges to the constitutionality of federal legislation that accords Hawaiians a legal status similar to the indigenous American Indians. Prior to selecting Iudge Sotomayor, President Obama stated that he was interested in appointing people to the court who had empathy. Empathy is defined as "understanding and entering into another's feelings." That is, of course, only one quality that the president searched for in his nominees. Aeademic achievement and experience in the law certainly will, and must, be part of the president's mix. Judge Sotomayor's legal and aeademic qualifications are unchallenged and unchallengeable. But at least some Republican senators have seized upon the quality of empathy favored by Obama and have attempted to turn it into a handicap. As one Republican put it, "Empathy for one group is prejudice against another." The charge is utterly ridiculous! A judge, or anyone else, ean certainly empathize with another person's predicament but still rule against him. The charge, in fact, is an attempt to equate empathy with "judicial activism." Conservatives assert that an individual with empathy will be inclined not to follow the rule of law, but will take the law off in another direction that was not within its original intent. Generally speaking, conservative jurists, legal scholars and Republican senators beheve that the law is an immutable set of rules that cannot and should not be twisted by judicial interpretation

to achieve a result that cannot have been eonceived of when the law was founded. The irony is that the present Supreme Court is more prone to judicial activism than any court for the past several decades. This is especially true regarding issues of civil rights and rights of ethnic minorities. The court has literally set federal civil rights statutes on their heads, by ruling, for example, against institutions such as universities that have attempted to halanee their enrolhnents by allowing minorities a bit of "breathing room" in finalizing the college's enrollment numbers. That the court is on a judicial activism road is, in my view, proven by the fact that nearly all of the decisions overturning the intent of the civil rights statutes, including claims of employment discrimination, have been decided by a 5-4 vote. So, what has all this to do with us? Well, I think we ean say with almost the highest degree of certainty that challenges will be lodged against the constitutionality of the Akaka Bill onee it passes. Any one, or more, of those cases will eventually be heard by the Supreme Court, and the arguments against the bill's codification of Native Hawaiians' right to reorganize their illegally overthrown govermnent will ring with charges that they violate the United States Constitution. In that milieu it is extremely important that we enter into the Supreme Court arena with at least a semblance of a level playing field. I believe that Judge Sotomayor's presence on the bench will afford us considerable support. We may still face five justices who are predisposed, given their approach to civil rights issues, to rule against us; however, it may be somewhat more difficult for them. If you will recall, OHA and the other private plaintiffs in the state's appeal to the Supreme Court in the ceded lands sale case were very aware that we had an uphill battle against the anticipated majority of the court. While Judge Sotomayor will not necessarily swing the majority around to our view, nevertheless, I believe she will be a vigorous supporter of the constitutionality of the Akaka Bill and for the rights of minorities in general. Let's wish her well. ■