HOUSTON, Texas —The three days of confirmation hearings before the Senate Judiciary Committee on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court came down to just a handful of utterances, most notably the one about “empathy.”

Case Western Reserve University law professor went so far as to say the conservative sway in the majority Democratic committee suggests they “are winning the larger war over the judiciary, even if losing the battle over this nomination.”

To her credit, while backing down on the wording, Sotomayor did not do so on the  intended meaning of her famous belabored statement at Berkeley Law referring to as “the wise Latina.” She acknowledged her words could be misinterpreted.

Yet, Sotomayor, defined by her 17-year body of work on the bench, is a centrist with the value-added of someone who has a feel for a new, uniquely 21st century concept that is entering all levels of thinking.

 Understanding (or not understanding) empathy is key, and time will tell if that is what made these hearings different. Unfortunately, when it comes to the law, with its twists and turns and seeming contradictions, to say nothing about the tortured language used to explain it, is not an easy path to follow. But there is some enlightenment to glean, especially by those who think the law is only about rational thinking.

Antonio Damasio, professor of neuroscience at the University of Southern California and head of its Brain and Creativity Institute, says in his 1994 book, “Descarte’s Error,” that emotion and reason are not separate but are dependent upon one another. He argues that rationality stems from our emotions, and that our emotions stem from our bodily senses.

This brain science is especially important to law, which codifies behavior, where errors are not easily corrected. Crafting it is not done with a wrench. The law is not a piece of engineering or a machine or a work of robotics, as it is so often unfortunately portrayed.

Damasio argues, instead, that rationality stems from our emotions, and our emotions come from our bodily senses. Is it any wonder that that George Lakoff’s book, “The Political Mind: Why You Can’t Understand 21st-Century American Politics with an 18th Century Brain,” quotes Demasio in the preamble? It says: “The immune system, the hypothalamus, the ventro-medial frontal cortices, and the Bill of Rights have the same root cause.”

In other words, the highest principles founding the nation as contained in the Constitution, of which the legislative, executive and judiciary are its custodians and agents, emanate from understanding the nature of the relationship, the feelings and emotions between the people and their government. And that is “empathy.”

A critical moment came in the hearings when Sotomayor rejected President Obama's view that empathy could often guide judicial decision-making. And that is true because few know what the practical, journeyman applications of this new knowledge are. We only know that it will have an important role to play this century.

Answering Sen. Jon Kyl (R-Ariz.), she said the President should explain for himself “what he meant by judging" in the context of “empathy.” And that is fair but ought not to be interpreted as impeaching the concept.

Perhaps she understands what Kyle and others possibly don’t (maybe never will) that our institutions are not perfectly rational in the 17th century sense of the term and that affects how judging takes place in the mind and in the modern court on key decisions.

This kind of “empathy” is a counterweight in the adversarial system of law where today almost by definition an Old Testament, zero-sum notion prevails about who’s right and who’s wrong.

And the reason this should have gotten more play is because this could become a central focus that distinguishes U.S. courts this century. The one Judge Sonia Sotomayor will be in the thick of.

 [José de la Isla’s latest book, Day Night Life Death Hope, is distributed by The Ford Foundation. He writes a weekly commentary for Hispanic Link News Service and is author of The Rise of Hispanic Political Power (2003). E-mail him at [email protected].]

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