Recently, as I watched the Senate proceedings about the well deserved nomination and eventually best deserved appointment of Judge Sonia Sotomayor to the US Supreme Court, I witnessed time and again statements by some Senators, unfortunately all of them Republicans of course (*), accusing the nominee of activism and of using empathy in her judgment. I say “of course” with disappointment. After two hundred and thirty three years of freedom we still have some members of the Senate who don’t seem to get what that freedom means for the rest of us.
A woman in Azle, Texas, recently displayed a "Hispanics Keep Out" sign on the front of her home that stirred up unease for some residents in that Tarrant County neighborhood. "Well, you know, I don't care," said a 72-year-old woman who answered the door at the home. "I'm upset about them coming over here illegally, too." The woman did not want to disclose her name. "We think this is our privilege as an American to protect our property," she said, "This is our property." Empathy, anyone? I had recurring images of Native Americans posting signs on their huts back in the sixteen hundreds that might have read: “Pilgrims Keep Out.” That would have been noticeable then, wouldn’t it?
Just so you know something about her town, let’s visit and quote from their official Web site: “Azle is located on SH (State Highway) 199, fourteen miles northwest of downtown Ft. Worth and straddles the Tarrant/Parker County line. It has an estimated 10,950 residents….  Azle is a master planned community that offers a quality of life that everyone can enjoy (My note: Not Hispanics, please). Surrounded by hills and trees, with the eastern portion of the city limits bound by the shores of Eagle Mountain Lake, Azle provides ideal settings for peaceful neighborhoods. Azle is a great place to relax whether you visit one of its city parks; enjoy water activities on Eagle Mountain Lake; read a good book at the Azle Memorial Library, or enjoy the challenge of playing golf at its 18-hole municipal golf course, Cross Timbers Golf Course.”(Source: http://www.ci.azle.tx.us/)
She is not alone, of course (here is “of course” one more time.) Some Senators, including Senator John McCain, who recently tried to convince Latinos to vote for him as President in a national election, decided to vote against the Judge one more time. Wanted consistency; he voted against her when she was nominated to the lower court before. Being there, done that, he probably said. Empathy again I suppose, “of course.”  
That “empathy” word kept popping up in my mind while those senators used their constitutionally given right to oppose the woman’s appointment to the court. They can dress their opinions anyway they want, but in my aging “wise Latino mind” all I see is racism, “of course,” plain and simple. But let’s give these folks a break, shall we? I will leave alone the racist point and revisit their empathy comments that appear to be so outrageous.
According to the dictionary, “Empathy is the capability to share and understand another's emotions and feelings. It is often characterized as the ability to "put oneself into another's shoes," Empathy does not necessarily imply compassion, sympathy, or empathic concern because this capacity can be present in context of compassionate or cruel behavior as well.” (Source: Wikipedia.)
So according to these Senators, a Supreme Court Judge cannot be “empathetic.” According to these Solons the justices are only supposed to issue clear deductions that come from previous constitutional principles and not “create” new laws. Well, let’s use a couple of cases that may show some light.
Sitting at a restaurant dinner table with my lawyer son-in-law, a glass of wine at hand “of course,” his constitutional law interest in Law School behind him now, we discussed this issue of empathy in the justices. He was beside himself trying to make some sense about that issue in the minds and voices of the senators who opposed Judge Sotomayor. We quickly settled on two examples where it was evident that the Justices were revolutionary in concept and philosophy, perhaps even empathetic, not simply copying from before.
The first was Brown v. Board of Education of Topeka, Kansas. That landmark decision handed down on May 17, 1954 unanimously stated that state laws that established separate public schools for black and white students denied black children equal educational opportunities and were inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This victory paved the way for integration and the civil rights movement that still seems to bother that woman in Azle, Texas. For our information, the Fourteenth Amendment to the Constitution was adopted on July 9, 1868, right after the Civil War.  For eighty six years, the Amendment stood silently while school segregation was taking place and not being spotted by non-empathetic justices.
Another decision of the Court, and one that is controversial as controversy can be was the famous Roe v. Wade abortion decision of January 22, 1973. Now, I don’t want to get in the middle of the discussions between opponents and supporters of that decision because it is quite sensitive from many angles, including religious beliefs. But it is a law, and all I want to say and to point is that nowhere in the original US Constitution I read a statement specifically supporting, or denying, the right of a woman to have an abortion. The court declared, however, “The abortion statutes void as vague and over broadly infringing the plaintiff’s (Roe) Ninth and Fourteenth Amendment rights.” They added the following: "The Constitution] is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
The Ninth Amendment, adopted in 1789, one hundred and eighty four years before Roe v. Wade, reads as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Did the Justices adopt, adapt or create?  I am not a constitutional attorney and leave that answer to them, but it is clear to me that this was new legislation and not simply carbon copying the constitution. If you have any doubt ask those who are still trying to change the law passionately.  
Were the Justices feeling empathy for someone in either of the cases listed above? You be the judge this time. As for the senators who so vehemently accused Judge Sotomayor of playing the empathy game, I believe most of them, if not all of them, claim to be good Christians. Christianity is based on the belief that Jesus died for all of humanity because he felt divine empathy for that humanity as well. What is wrong with that feeling? “To err is human, but to forgive is divine;” Alexander Pope, great English Poet.
And that is my Point of View today, of course.
(*) In fairness to Republicans, some of them voted for Judge Sotomayor.