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Articles about the Role of Empathy in the Supreme Court and to Justice
Blog Roll

This is my working area to follow, track and organize articles about the national debate about the role of Empathy in the Supreme Court and to Justice. The debate was started by Barack Obama saying that empathy was one of his criteria for choosing a Supreme Court Justice. Conservatives replied with an all out attack on the value of empathy. The debate heated up with the nomination of Sonia Sotomayor and has continued with the nomination of other Circuit Court (etc) Judges and again in regard to a replacement for Judge Stevens. Here are Links to Articles and Videos related to this discussion. Each article has a short extract from the article  This debate is also quite extensive in the Senate and more about that can be seen here. The articles are organized chronologically by date with the most current at the top..
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2011-03-22 - Obama's Empathy for the Supreme Court - HuffPost
John Paul Rollert - Lecturer in Business Ethics and Leadership, Harvard Extension School
I recently suggested that Justice Sam Alito's lonely dissent in the Phelps First Amendment case seemed to embody the "empathy standard" for judicial review, the very standard that Republicans warned about in the Supreme Court nomination hearings for Sonia Sotomayor and Elena Kagan.

2011-03-16 -  Sam Alito: Setting the "Empathy Standard" for the Supreme Court  - HuffPost - John Paul Rollert 
For almost two years now, Republicans have issued dire warnings about an urgent threat to the Constitution emanating from the Supreme Court. What is this menace? A Justice's capacity for empathy, what Senator Lindsay Graham has called the "absurd, dangerous standard" by which President Obama has promised to evaluate Supreme Court nominees.

2011-03-18 - Mysterious Justice  - NY Times Magazine
 In fact, it’s lately from Alito that we get a window onto right-wing empathy on the court — and onto conservative instincts generally about who deserves our solicitude. Through it we see that Alito expresses feelings mostly for people who are a lot like him. Republicans pummeled Obama when he named empathy as a quality worth pursuing in his Supreme Court nominees. But they don’t complain about Alito, whose record shows that selective empathy can be deployed in the service of piling vote upon conservative vote.

2010-08-16 - A Coda to the Kagan Nomination: Empathy, Impartiality and the (Mis)Education of Jeff Sessions  - HuffPost - John Paul Rollert
Empathy teaches us how. By it, we strengthen our imagination by conceiving the lives of others and train ourselves to be impartial judges of our own interests. Empathy also teaches us to weigh the concerns of others equally.
But if the practice of empathy can train one to be an impartial judge, does it have a further role in deciding the outcome of a case? The answer one gives will likely depend on her opinion of the clarity of the law, especially constitutional law.

2010-10-15 - Reversed on Appeal: The Uncertain Future of President Obama's "Empathy Standard" - Yale Law Journal - John Paul Rollert
He had challenged conventional wisdom when he called empathy “an essential ingredient for arriving a[t] just decisions and outcomes” and thus the preeminent quality he would look for in his Supreme Court nominees. It was not the first time the President had used the word “empathy” to describe his views on constitutional interpretation and the complicated work of a judge. It may, however, have been the last.

2010-12-31 - Is There a Place for Empathy on the Supreme Court? - Root.com
Republicans had a field day when the president said that "empathy" was an important attribute for a Supreme Court nominee. But as recent cases argued before the court prove, lives are at stake. Empathy is essential.


2010-12-31 - Jeremy Egerer - Law in the Empathetic Society - American Thinker
Must an increase in empathy signal a decrease in law?
My question to my readers is this: living in a secular, multicultural, postmodern world, there is an increasing cacophony within the world of compassion. 

2010-07-08 - The surprising star at Elena Kagan's hearing: Thurgood Marshall
Because Obama has avoided engaging the empathy debate, Republicans tried to use Kagan's mentor and former US Supreme Court Justice Thurgood Marshall as a way to taint Kagan's reputation.

In his speech nominating Kagan, the e-word unspoken, though Obama appeared to hint at it. He quoted Kagan’s tribute to her former mentor, in which she said that Marshall liked to tell stories of his own pursuits of justice to remind his clerks that “behind law there are stories – stories of people’s lives as shaped by the law, stories of people’s lives as might be changed by the law.”
 

2010-07-05 - It’s Ok For Supreme Court Justices To Be Human Beings

If you watched the Elena Kagan Supreme Court nomination hearings last week, you might have concluded that the ideal Supreme Court justice is a robot or a computer.  Republican senators denounced judicial "empathy" (even as they confused it with sympathy or bias), and Kagan pledged to put aside all personal views in deference to the "law", which, she implied, was a clearly definable force for pure objectivity.  No one challenged the assumption that the ideal justice is one who puts aside all of his or her personal experiences and human qualities in the pursuit of neutrally applying clearly objective law.

 2010-06-28 -  Obama 'empathy' questioned at Kagan hearing
With midterm elections four months away, Republicans criticized Obama's philosophy of judicial empathy, an idea the administration first posed last year when the president nominated Sonya Sotomayor to the nation's high court...
"Even today, President Obama advocates a judicial philosophy that calls on judges to base their decisions on empathy and their 'broader vision of what America should be,'" said Sen. Jeff Sessions of Alabama, the ranking Republican member. "He suggests that his nominee shares that view. Our legal system does not allow such an approach."

 2010-06-28 -  Kagan Disregards Obama View on Empathy
As Justice Sonia Sotomayor did a year ago, Supreme Court nominee Elena Kagan backed away today from President Barack Obama's statements about the role of empathy in judging. “Senator Kyl, I think it’s law all the way down,” she said. “The question is what the law requires. Now, there are cases where it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court…. But it’s law all the way down, regardless.”

2010-06-20 - Elena Kagan Could Cite Texas Judge Sharon Keller as Opposite of Judicial Empathy
Rather than wait for overwrought analogies from both sides, Kagan should use the forum, and the opportunity, to educate the committee and the rest of the nation about what "judicial empathy" really means -- and also what it doesn't mean....
This empathy -- this "heart," as President Obama puts it -- does not ignore facts or precedent or legal reasoning. It's not an empathy that tips the scales on the merits. It's not an empathy that is left or right or in between on the ideological scale. It is, I suggest, an empathy that travels upon a more basic and essential human path. It's an empathy where the judge doesn't deliberately sabotage a last-minute, death row appeal and then try to cover it up the next day. It's an empathy for the spirit of the law and not just its letters.


2010
-06-20 - James L. Gibson - Expecting Justice and Hoping for Empathy
Gauging views of the American people on Supreme Court justices suggests that while empathy is in the eye of the beholder, it’s a value most people favor on the bench.
 

 

2010-06-10 - Obama’s emotions — or lack thereof — become matter for public debate, overlaying oil spill and economy

One prominent Democrat, however, said that the entire situation – the use of such strong language to compensate for Obama’s more cerebral and stoic personality — exposed a void in Obama’s leadership style.

“Politics is about something much deeper than problem-solving. The essence of morality is empathy. If you feel someone’s pain the chances are you’re a good person. The Golden Rule is basically: Feel someone else’s pain,” the veteran Democrat told The Daily Caller.

“And when you cast yourself as the problem-solver in chief — devoid of empathy, denigrating empathy — you had damn well better solve the problem. Anyone out there think we’ve solved the BP spill? Or unemployment? Or the deficit? No. Problem-solving takes time, and the only way voters will give you the time you need is by showing them you’re on their side,” said the Democrat consultant, who asked not to be identified in order to speak more frankly.

 

2010-06-10 - Conn. Judge Accused of 'Empathy' Toward Sex Offenders Gets Senate Panel OK
http://www.foxnews.com/politics/2010/06/10/panel-approves-judicial-nominee-despite-concern-conduct-serial-killer-case/?test=latestnews

The Senate Judiciary Committee on Thursday approved the Circuit Court nomination of a controversial judge assailed by Republicans for his "empathy" toward sex offenders and intervention in the high-profile case of a serial killer. 

"He has elevated himself above the law," said Sen. Tom Coburn, R-Okla. 

Chatigny is up for a nomination to the Second Circuit Court of Appeals. He gained national attention in 2005 for delaying the scheduled execution of Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism." 

"I find it absolutely impossible to support a candidate who has shown such disregard for victims of crime," Senate Minority Whip Jon Kyl, R-Ariz., said Thursday before the vote, calling Chatigny's "empathy" in the courtroom "misplaced." 

--------------------

Every Circuit and district court nominee sent to the senate by Barack Obama is now given a set of questions by the conservative senators that asks them about their views on the value of empathy.  Here is part of that form that Judge Chatigny filled out.

 


Lady Liberty says the blindfold was definitely better. conservatives say empathy is taking the blindfold off.
 

2010-05-20 - Kurt Schlichter - With Kagan, Empathy For the Military Is the Least Of Her Qualities
Elena Kagan’s problem is not that she has too much empathy but that she has too little. President Obama famously made “that quality of empathy, of understanding and identifying with people’s hopes and struggles” his key qualification for a seat on the Supreme Court. What little we know of Ms. Kagan’s record demonstrates that she does not meet even that nebulous standard.....

This is precisely the opposite of justice, and what they call “empathy” is nothing like empathy as it is understood outside academia. If Ms. Kagan possessed even a trace amount of true empathy, she would never have enforced Harvard’s hateful military exclusion policy. If she possessed true empathy, she would be ashamed of herself. he sad fact is that “empathy” is nothing but a code word for bias toward favored groups. And those “despised and downtrodden” whose cases will be judged by Justice Kagan and do not fall within one of her favored groups will find she has no empathy at all.

 2010-05-18 - Kurt Schlichter - A code word for bias
This is precisely the opposite of justice, and what they call "empathy" is nothing like empathy as it is understood outside academia. If Ms. Kagan possessed even a trace amount of true empathy, she would never have enforced Harvard's hateful military exclusion policy. If she possessed true empathy, she would be ashamed of herself.  The sad fact is that "empathy" is nothing but a code word for bias toward favored groups. And those "despised and downtrodden" whose cases will be judged by Justice Kagan and do not fall within one of her favored groups will find she has no empathy at al

 2010-05-18 - Craig Schulz - Sessions Cites Concerns about Kagan
“We have within the law schools some activist philosophies,” Sessions said, “that suggest judges can allow their empathy – and as President Obama said – their feelings, their ideology to influence how they interpret plain words in our laws. I think that’s a danger.” “I think all our liberties are weakened if a judge is not faithful to the law. If they can change the law, the next judge can change the law and the next judge can change the law, and it just weakens the protections that our Constitution gives every single American.”


2010-05-16 - Fox News -
Kagan's Road to the High Court - video
    it. And so we have within the law schools. Some activists philosophies that are out there that suggest judges allow their empathy as President Obama said. On their

 

 2010-05-14 - Justice Kennedy speaks to PB Bar Association
http://link.brightcove.com/services/player/bcpid14599856001?bctid=85843497001
Forum Club of the Palm Beaches - West Palm Beach, Fla., on Friday,When asked if empathy has a place in judicial rulings at the highest levels, -
Kennedy was asked if empathy can be “perfectly excised” from the judiciary. -

“No, If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?” He said mandatory minimum laws passed by state legislatures are cost foolish and have created a failing penal system. In conclusion, Kennedy said he expects the dynamic to change among justices when Kagan, if confirmed, joins the court. “It’s a new table. It’s a new court,”
 
 

2010-05-16 - THE COURT OF EMPATHY
Obama said he wanted someone with a "keen understanding of how the law affects the daily lives of the American people."....
His "empathetic court" seems more like a way to discard the Constitional guidelines by ignoring them or not referencing them anymore in favor of case-by-case style decisions.  It's an empathetic end run around the constitution....
We don't need a justice with empathy, we need one with a good, working knowledge not just of the Constitution, but of the Federalist Papers and the Founding Fathers themselves.
 

2010-05-16 - Justice offers sound advice: Tone it down, be deliberate
For example, President Barack Obama probably did his last nominee, Sonia Sotomayor, no favor when, in praise of her, he said she would bring "empathy" to the bench. His critics howled that the president's use of the term "empathy" provided a pass for permitting personal whims and prejudices to trump case law and legal precedent. Not so fast, Justice Kennedy told his Florida audience of about 750 at the Forum Club of the Palm Beaches and the Palm Beach County Bar Association. "You certainly can't formulate principles without being aware of where those principles will take you, what their consequences will be," he said. "Law is a human exercise and if it ceases to be that it does not deserve the name law."


Myth: Obama used "empathy" standard rather than fealty to law in choosing Kagan
CLAIM: Obama said he is looking for judges who exhibit "empathy" instead of following the rule of law. Conservatives have falsely claimed that Obama has said he will pick judges because of their "empathy" rather than their dedication to the rule of law and have suggested that Obama's references to empathy and personal experience run contrary to conservative judicial thought. For example, an April 9 Daily Caller post stated:


2010-05-10 - Jeremy Rifkin -
You Were Right the First Time, Mr. President: The Supreme Court Needs Empathy
President Obama has nominated Elena Kagen to be the 112th Justice of the Supreme Court. Strangely, in introducing his new nominee the President made no mention of the 'E' word. Apparently the word been banned at the White House. The mere utterance of the word empathy sends shivers down the spine of the most seasoned political operatives in the Obama administration. Here is a President who for years claimed that empathy was the guiding philosophical principle of his public and private life, who now apparently has taken an oath of silence, for fear that the mention of the term might compromise the prospects for his Supreme Court nominee and, perhaps, other aspects of his foreign and domestic policies.

Empathy has suddenly become a four letter word, and the reason goes far beyond the question of the way a Supreme Court nominee should approach a legal question. At the root of the matter is a sea change in our thinking about what constitutes human nature and the socialization process.
 

2010-05-10 - John Paul Rollert - Elena Kagan: Would she embody empathy as a Supreme Court justice?

President Obama praised Elena Kagan for her intellect and passion, but he only hinted at the quality he earlier deemed an essential ingredient in a Supreme Court justice: empathy.

Missing, however, was the quality that Mr. Obama last year called “an essential ingredient for arriving at just decisions.” That quality is empathy, a word the president has used to call attention to the limits of the written law in difficult cases and to the powerful role experience can play in deciding them.

Obama first praised the importance of judicial empathy during the nomination hearings of Chief Justice John Roberts. Then the junior senator from Illinois, he was prompted by Mr. Roberts’s opening statement, which attempted to defuse speculation about how his personal politics might color his decisions by likening the work of a judge to


2010-05-08 - A Great Heart (NYTimes
There will be no dearth of brains, legal learning or technical skills among the Supreme Court justices remaining on the bench after Justice John Paul Stevens retires. However, when the stony indifference to ordinary people’s suffering of our conservative justices is factored in, an essential quality that will be in much shorter supply is empathy. There is an urgent need to correct this deficiency when President Obama fills the vacant seat.

It is empathy that will make the new justice sensitive to the concerns of underrepresented groups, and not membership in one particular group or another. Fortunately, President Obama understands this truth: he has wisely singled out empathy as “an essential ingredient for arriving at just decisions and outcomes.” Similarly, President Bill Clinton, learning that Justice Byron White would retire, declared that he would seek a candidate with “a fine mind, good judgment, wide experience in the law and in the problems of real people and someone with a big heart.”


 

2010-05-07 - Matt Barnum - The trouble with empathy
Empathy is a hard-to-define concept that does not help when evaluating judicial candidates
Clutch is to baseball what empathy is to the Supreme Court: Both can exist in a single moment—that is, a ballplayer can wrap out a clutch base hit and a jurist can write an empathetic decision. However, neither trait is all that helpful in terms of evaluating a potential major leaguer or potential justice.
Empathy, like clutch, is often in the eye of the beholder. In fact, the attachment of the empathy label says more about the beholder than it does the judge in question. This is abundantly apparent in Dahlia Lithwick and Sonja West’s recent piece in Slate, “The Unsung Empathy of Justice Stevens.” (We’ll hold aside the ridiculous use of “unsung” here—have they read any of the gushing profiles about Stevens recently?)


 

2010-05-07 - Jeff Sessions - Americans look for Supreme Court to restrain federal power, not expand it
When the president nominated Sonia Sotomayor to the court last May, he said he wanted a justice who would decide cases based on her sense of empathy. But the empathy standard was soon rejected by the American people for what it was: license for unaccountable, lifetime-appointed judges to impose their political and social preferences from the bench. Despite widespread repudiation of the empathy standard -- including an explicit rejection from Sotomayor -- the president has not retreated from this view. Instead, he has searched for new ways to describe the same flawed idea.  President Obama said recently that his court nominee must have "a keen understanding of how the law affects the daily lives of the American people." This is nothing more than another thinly veiled attempt to justify judicial activism.

 

2010-05-06 - CARRIE SEVERINO - Too much SCOTUS protest
Sixties-era empathy is out, judicial restraint is in.
Or at least that’s what President Barack Obama would have us believe when it comes to his next Supreme Court nominee.
His remarks last week represented another attempt to distance himself from his campaign promise to fill the judiciary with feel-good therapists instead of judges.


2010-05-06 -  The risk of misunderstanding “The Other”

Viewing others in abstract terms blunts our ability to empathize. Empathy does not mean being nice, but rather describes the capacity to put yourself in another person’s shoes and view the situation from their perspective. Individuals and teams that lack empathy consistently miscalculate how others will act, because they misunderstand others players’ perspectives, motivations, and constraints. Those who can empathize, in contrast, can better understand a messy situation and anticipate how events might unfold.

 

 
2010-05-05 -  Obama, Hatch talk about Supreme Court choices in private chat
"Last summer, President Obama talked often about how judges should be guided by their empathy. This year, the buzz phrase seems to be core constitutional values," Hatch said. "This is the same old thing, just another cloaking device for judges who seek to control the Constitution."

 

2010-04-30 - Douglas LaBier - Obama, Empathy And The Supreme Court Nominee
Well, people, it looks like the fight over the “e-word” has started again.  Remember last year, when President Obama said that the capacity for empathy was an important criteria for selecting a Supreme Court nominee?  He was quickly attacked by those who apparently heard “empathy” as a code word for some kind of ideological bias.  And shortly after, Obama backed off from using the term. Last June, I wrote here about why I thought he should keep on using the word empathy, not back away from it.  I have a particular interest in the subject, having written about our national “empathy deficit disorder” in The Washington Post a few years ago — and which I recently updated on my Psychology Today blog.  During last year’s Supreme Court nomination process, critics distorted what empathy is.  It’s  actually the capacity to experience what another person experiences.  It’s what gives you the capacity for wisdom, perspective and sound judgment; not bias or distortion or being bamboozled into the other’s point of view.

 

2010-04-28 -  Why so much worry about 'empathy' on the Supreme Court?
The New York Times reports that President Obama is avoiding the word empathy as he picks his second Supreme Court nominee. And who can blame him, considering comments such a this from former Bush 43 adviser Ed Gillespie: “Empathy’s a great trait in a drinking buddy, but not so much a Supreme Court justice.” But does the E-word really deserve all of this focus? Shouldn’t the priority be finding a Supreme Court justice who isn’t, say, corruptible or mendacious? Is it better to have a corporate stooge on the bench than someone capable of understanding how his or her decisions will affect 300 million fellow citizens? Better to have a biased judge than a humane one, a dishonest justice instead of one who’s insightful?
 

2010-04-28 - PETER BAKER -  In Court Nominees, Is Obama Looking for Empathy by Another Name?
Empathy is out. Understanding ordinary lives is in. Is there a difference? President Obama is about to find out.
A year after Mr. Obama made “empathy” one of his main criteria in picking his first Supreme Court justice, he is avoiding the word, which became radioactive, as he picks his second nominee. Instead, he says he wants someone with “a keen understanding of how the law affects the daily lives of the American people.”


2010-04-14 - Heather Horn - Judicial Empathy: Cru
cial Protection or Erosion of Justice?

As the debate over Justice Stevens's replacement on the Supreme Court ramps up, the word "empathy" is again being tossed around. Empathy was a big topic of discussion during Justice Sotomayor's nomination and confirmation process. President Obama stated that it was one of the qualities he wanted in a justice, and said during the campaign that a he valued a judge who understands "what it's like to be a young, teenage mom ... what it's like to be poor or African American or gay or disabled or old."
 
For Empathy  The framers, Stone argues, emphasized the "power of judicial review" as a correction to democracy's imperfection: "the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority...

Against Empathy  Empathy runs directly counter to the idea that justice should be impartial, counters Jonah Goldberg...
 

 

 

 

Justice Stevens Steps Down  2010- 04-09

 

2010-02-04 - -Republicans Say They'll Support DOJ Policy Pick
The committee voted 16-3 in favor of Schroeder’s nomination. Among those opposing him is Sen. Tom Coburn (R-Okla.), who pressed Schroeder last year on whether he supports President Barack Obama’s position that empathy is an important quality in judges. Schroeder wrote in reply (PDF) that empathy is one of several qualities that should play a role in a judge’s consideration of a case.


 

2010-04-27  Ed Whelan - Rebranding Obama’s Lawless Empathy Standard 

Both the New York Times and the Washington Post had articles yesterday on President Obama’s effort to rebrand his lawless empathy standard for selecting Supreme Court justices.  Obama’s new rhetorical smokescreen is that he wants justices who have “a keen understanding of how the law affects the daily lives of the American people.” 

 

In a fine post on Power Line, Paul Mirengoff concludes that what Obama “really wants … is a justice who will be animated not by what ordinary citizens think they want, but by what the liberal elite has concluded they need.  In a related vein, I’ll note a recent Volokh Conspiracy post by law professor Kenneth Anderson that nicely observes that the Left’s “intellectual move”...


 

 2010-04-26 - Obama Rejects ‘Empathy’ as High Court Nominee Litmus

http://www.scrappleface.com/?p=4570

 Eager to avoid the controversy that surrounded his last Supreme Court pick, President Barack Obama today categorically rejected “empathy” as a characteristic he seeks in a court nominee.

“On the contrary,” the president said emphatically, “I’m looking for a judge who cannot be swayed by the subjective feelings that the Founding Fathers enshrined in the Constitution. My Supreme Court nominee will strictly enforce justice without regard to the vagaries of human emotion that swept away Madison, Washington, Franklin, Hamilton and the others.”

President Obama’s remarks come after recent White House suggestions that he’s scouring the nation to find candidates, not with empathy, but with “a keen understanding of how the law affects the daily lives of the American people,” which is an entirely different quality.
 

2010-04-26 - PETER BAKER - In Court Nominees, Is Obama Looking for Empathy by Another Name?
http://www.nytimes.com/2010/04/26/us/politics/26memo.html
Empathy is out. Understanding ordinary lives is in. Is there a difference? President Obama is about to find out. A year after Mr. Obama made “empathy” one of his main criteria in picking his first Supreme Court justice, he is avoiding the word, which became radioactive, as he picks his second nominee. Instead, he says he wants someone with “a keen understanding of how the law affects the daily lives of the American people.”


 2010-03-30 - Helen Smith - How Should Conservatives Deal with the Left’s Disrespect and Lack of Empathy?
I often feel bad for those on the right such as Jeff Goldstein who try to make sense of someone on the left who treats them with disdain and disgust. ...
Why are liberals unable to sympathize with conservatives? I offer three possibilities. First, I often wonder if this “blind spot” for conservatives is similar to the psychopath who cannot comprehend the morality of those who are “normal.” At the present time, there is no known cure for treating the psychopath. Trying to get someone on the left to see where a conservative is coming from may be as difficult as trying to change the mind of a psychopath. Perhaps that will happen one day.

 

2010-01-25 - : SCOTUS & Sotomayor
http://washmo.com/local-blogs/47-guy-midkiff/574
When and if Sotomayor is confirmed, she will put her hand on a Bible and swear an oath to uphold and defend the Constitution. "Empathy" has no room in this process and in fact is anathema to our rule of law. When I read her 2001 Berkeley speech where she says a Latina woman can reach a better conclusion than a white male, I am somehow not comforted by her standards of impartiality. Had one merely flipped the players in this quote, from Latin female to white male, we would have an unambiguously bigoted, bordering on racist statement. How has this point become lost on so many Americans?

 

 

 


 

2009

 



Should judges have anti-empathy? (10:14) May 14, 2009
Mark Schmitt: The American Prospect, New America Foundation
Will Wilkinson: The Fly Bottle, The Economist

 

 

 


Deciphering Obama’s Supreme Court “empathy” remark (04:09May 4, 2009
Emily Bazelon; Slate, Double X 
Ann Althouse: Althouse, University of Wisconsin Law School

 



Obama’s “empathy”: code for unconstitutional do-goodery? (07:31)  May 12, 2009
Peter Beinart: The Icarus Syndrome
Jonah Goldberg: National Review Online, L.A. Times

 

 





2009-05-05 - J D Traut -  Empathy in the court 

http://www.jdtrout.com/sites/default/files/Chicago%20Tribune%20Op-Ed%20on%20Empathy.PDF
President Barack Obama’s call for an empathetic U.S. Supreme Court nominee hasgotten the press and the public in a race to figure out what an empathetic justice might be like. Empathy begins with the recognition that you have a perspective in the first place, one that is different from others and one that can be informed by others. But the backgrounds and social and personal environments of nearly all of the justices are barriers to empathy. The justices belong to a select demographic. They are financially comfortable, well-cared for and widely respected. Their safe travel often requires a security detail, and their occupation demands much time for quiet reflection and with it, social isolation. This affects what they see in the world and how they experience it. An empathetic justice resists the easy fiction that his or her experiences are those of a normal U.S. citizen under ordinary stresses



 

 

2009-12-30 - Article - Political Empathy: A Disaster
http://www.associatedcontent.com/article/2541577/political_empathy_a_disaster.html?cat=9
In the contemporary political discourse we see an emergence of the call for empathy when considering government policies by those of the left.  The motivations behind this are clear enough: leftists believe that they can show that the empirical and rational economic doctrines of the free market, which conservatives support, are somehow cold, uncaring and sterile, not being concerned with the lives of actual human beings. Thus, the leftist call for empathy seems to a priori destroy the foundations of conservative views on economic development and progress by reaching into the emotional empathetic consciousness of humankind.


by CitizenLink (videos) The Empathetic Umpire -   Video
http://www.facebook.com/video/video.php?v=84728140786
Should an umpire call balls and strikes based on the personal situation of a player? In his Stoplight® commentary, Stuart Shepard compares how the president and the chief justice of the Supreme Court differ on how to make a call.


 

2009-12-28 - Article - Bob Adelmann - Will Obama Nominate Napolitano for the Supreme Court?
http://www.thenewamerican.com/index.php/usnews/politics/2643-will-obama-nominate-napolitano-for-the-supreme-court
"Evidence is mounting that Obama will have another opportunity to appoint a justice to the Supreme Court when Justice Stevens retires next summer.
Justice John Paul Stevens, age 89, raised some eyebrows when he hired just one law clerk to his staff for the current term. Full-time Justices can hire as many as six clerks, and retired Justices usually hire two. Speculation as to who might be nominated to replace Stevens was fueled by NBC’s Chuck Todd’s suggestion (to Laura Ingraham on her radio show) that Janet Napolitano would soon resign her post as Secretary of Homeland Security in order to be available for the nomination:....

President Obama has made himself abundantly clear about his position on appointing justices to the Supreme Court. As a Senator, Obama expounded on his “empathy” standard to explain why he voted against Justice John Roberts as Chief Justice:"

 

2009-11-16 - Article - Sessions to Filibuster Obama's 7th Circuit Nominee
http://swampland.blogs.time.com/2009/11/16/sessions-to-filibuster-obama%E2%80%99s-7th-circuit-nominee/

Jeff Sessions, the top Republican on the Judiciary Committee, today told reporters that he plans on filibustering David Hamilton, President Obama's nominee to the 7th Circuit Court of Appeals. “I intend not to support going forward on the Hamilton vote,” Sessions said. “Unlike Justice Sotomayor, when asked to discuss the empathy standard he has embraced it.”
....
These cases, plus Hamilton's support of the empathy rule and previous statements where he said he believes in footnotes in the constitution, led Sessions to deem Hamilton “extraordinary.” Supporters argue that in the Allah case Hamilton clarified his decision in a post-judgment motion that the ruling applied to all "non-sectarian" references to God and that many conservatives nominees, including Supreme Court Justice Samuel Alito, have also said empathy is an important quality for a judge.
 


2009-10-04 - Article - Rick DeJésus-Rueff - Justice Sotomayor hits the high court – what about empathy? **
http://www.csmonitor.com/2009/1005/p09s01-coop.html
President Obama cited empathy as a quality he sought in nominees, yet empathy suffered criticism and derision from opponents of Justice Sotomayor. Listening to the critics, you might believe empathy renders a person incapable of rational and fair judgment. 
"I'm afraid our system will only be further corrupted as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the 'depth and breadth of one's empathy,' as well as 'their broader vision of what America should be,' " claimed Sen. Jeff Sessions (R) of Alabama, a critic of Sotomayor and empathy injustices. ...
It is wrong to equate empathy with the promotion of one group's interests with minimal regard for others, the definition of identity politics. Properly understood, empathy can be a bulwark against identity politics....
Empathy can move us out of our narrow circles of self-interest; it can help us appreciate and understand others' perspectives and concerns. Weighing and balancing perspectives with empathy can go hand-in-hand with weighing and balancing evidence so that decisions are made equitably. That is a better recipe for justice than "blindness," which can cause us to miss glaring injustices embedded in our legal system...
On the 50th anniversary of 1954 Brown v Board decision, a story by National Public Radio about this described a defining moment for Chief Justice Earl Warren in that case.
 

 

2009-09-03 - Article - Laura Casey - In the Bay Area, empathy is the word
http://www.insidebayarea.com/bay-area-living/ci_13261959?source=rss
El Cerrito's Edwin Rutsch says he understands every angle of the empathy discussion, the words that have come out of Obama's mouth and the reactions from political pundits, Republicans and Democrats alike. For the last year or so, Rutsch has been compiling news clips and interviews of the president and his supporters and detractors for a documentary on empathy. He even counted how often the word was used during Sotomayor's confirmation hearing — more than 250 times.
"Not a lot of people are aware of how much Obama talks about empathy," he says, pointing to a nearly two-hour video he's created that includes clips from Obama's speeches. The video, some of which will be part of a documentary he is producing titled "Barack Obama and New Spirit of Empathy," can be viewed at www.CultureOfEmpathy.com.
"Empathy, to me, is one of the most important values people have to bring us together," he says. Rutsch also hosts "Empathy Cafes," gatherings in the East Bay for people to talk about empathy and what it means in their lives. He's convinced that Obama's election was a clear signal that the country wants more empathy.

 

 

2009-09-03 - Article -J .E. Robertson -  Intolerance Becoming Banner of Split Republican Party
casavaria.com

With a profound philosophical rift emerging in the nation’s chief opposition party, intolerance and programmatic lack of empathy are becoming the hallmarks of a troubled Republican minority. Party strategists are now worrying that, whatever the benefit might be for “building the base”, a more hard-line, less flexible, less inclusive vision of Republicanism will hurt the party’s chances in national elections.
The two elements of the problem are crucial: Intolerance, because ideological conservatives have seized on Obama’s inclusive 21st century message of “change” as a touchstone they can use to signify a threat to all things traditional, American, and, if you will, read: white. No-empathy, because their positions routinely ignore the human element in issues of major political controversy.
Empathy vs. Non-empathy in Public Service
Empathy became a catch-word this summer, when Republicans sought to use the word to describe Obama’s choice of Sonia Sotomayor for the Supreme Court as a “racist”, because she might “empathize” with actual human beings making an argument before her. The term they were looking for, of course, was sympathy… empathy is not sharing a view, but sensing the shared humanity of the other, possibly of someone whose views are diametrically opposed to one’s own.
 

 

2009-08-25 - Article - Benjamin Keep - Originalism Ascendant on the Supreme Court
http://cornellsun.com/section/opinion/content/2009/08/28/originalism-ascendant-supreme-court
If Obama was trying to reorient the tone of contemporary Supreme Court jurisprudence by mentioning empathy and nominating Sotomayor to the bench, he failed. If anything, Sotomayor’s confirmation process has cemented a strict, restrained way of judging into the public consciousness. The liberals may have won the nomination, but the rhetoric of confirmation remains conservative....
Even more disturbing, Sotomayor explicitly denied the role empathy and life experience play in judgment (“We have to recognize those feelings, and put them aside.”). Not only does this paint a hopelessly dualistic picture of the human psyche, but it also ps that we can put aside those feelings. Her comments amount to: “we are not robots; we just have to act like them.” Many scholars now consider originalism to have won the ideological war, but a note from Oliver Holmes shows just how far American jurisprudence has drifted: “The life of the law has not been logic: it has been experience.”



 

2009-08-25 - Article - Empathy Surfaces As A Big Reason Not To Prosecute Torture Offenses.
prospect.org

Despite the conservative war on "empathy" in the law that reached its zenith during the Sonia Sotomayor confirmation hearings, empathy has emerged as the primary argument on the right against prosecuting those involved in torture. In his statement responding to the release of the documents, Dick Cheney said, "The people involved deserve our gratitude. They do not deserve to be the targets of political investigations or prosecutions."...
This isn't really a divergence from conservative views of the law -- conservatives simply choose different subjects on which to express empathy than liberals do. After spending months arguing that the law is unbending, objective and not subject to interpretation, conservatives are now demanding that the Justice Department ignore the fact that laws were broken because of who the potential targets of prosecution might be.

 


2009-08-20 - Article -  Should-judges-have-empathy-compassion-or-neither

Scienceandreligiontoday.com
Should judges have empathy or compassion, and what is the difference between these two ideas anyway?
Webster’s New World Dictionary defines “empathy” as the “projection of one’s own personality into the personality of another in order to understand him better.” If you appear before a judge someday and have to explain your particular circumstances, would you want a judge who could mentally step into your shoes for a few minutes? I certainly would. The judge might still rule against you, send you to prison, deny you child custody, or take whatever action the law demanded. But one of the most frustrating, even infuriating, situations one can face is that those who have power over you
do not understand your situation.

 


2009-08-17 - Article -
Andrew Cohen  - Anti-Empathy, Anti-Judge Goes on Trial
http://www.cbsnews.com/blogs/2009/08/17/courtwatch/entry5247142.shtml
The word "empathy" was everywhere during the just-completed Supreme Court confirmation process for Judge Sonia Sotomayor. President Obama embraced it to help describe the sort of justice he was seeking on the Court. Conservatives derided it as anathema to the concept of dispassionate justice. But neither side adequately explained the concept of "empathy" in judging nor offered specific examples of its use or abuse in court.... We like to think that our judges should be automatons, completely devoid of human empathy and compassion, but the truth is we need them in the end to be just decent human beings. That's why even if you won't admit it to yourself you'd rather have Justice Sotomayor as your judge than Justice Keller.

 


2009-08-17 - Article -
 James Carroll  - In search of empathy
 boston.com
The most curious symptom of our disorder showed itself when the word “empathy’’ became politically taboo. Last spring, President Obama defined the “quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.’’ Mercy is not the opposite of justice, the president was reminding us, but an ingredient of it.
One would think he had said something obscene. Suddenly critics were wailing about “selective empathy’’ and “emotional activism.’’ To empathize with one party, it was charged, is to discriminate against another. The blindfold on Lady Justice means she is unfeeling. Or, as Justice Sonia Sotomayor put it, when she, too, appeared to reject what had come to be called the empathy standard, “We don’t apply feelings to facts.’’
Behind much of this trivialization of the important value the president had upheld was the now-reliable cynicism of Republicans, but the establishment repudiation of the idea of empathy as key to judiciousness was widespread, and there’s the revelation.



2009-08-17 - Article - Dr. Slammy - Michael Vick and the problem with forgiveness

http://www.scholarsandrogues.com/2009/08/17/michael-vick-and-the-problem-with-forgiveness/

And here’s my biggest problem: what Michael Vick did was simply sub-human. I don’t mean that word in a pejorative, insulting way. Instead, I’m referring to a clear deficit in human empathy. One of our greatest writers, Philip K Dick, in one of his greatest books, Do Androids Dream of Electric Sheep?, confronted a world of increasingly human-seeming androids and posed the question: what quality makes us essentially human?
The answer: empathy. In the narrative (upon which the film Blade Runner was based), humans worked hard to cultivate their empathy (which was central to the society’s dominant religious ideology) through the stewardship of animals. A citizen who didn’t have an animal to care for lived a deficient, hollow life, and few sins were more damning than the failure to properly care for one’s animal. In one of the central moments of the novel, one of the replicants kills an animal – something no human could have even contemplated. The lesson is undeniable: only something inhuman could harm an animal.
Dick’s depiction of a strange science fiction near-future was brilliant in its grasp of the fundamental character of our actual humanity, here in the real and now. Empathy makes us human, and there are few measures of empathy that are more revealing than our treatment of animals. Why animals? Because they are helpless. They rely on us.
 


2009-08-09 - Article -
Josh Gerstein -  Supreme Court snoozer for Sotomayor
 politico.com

Obama’s empathy-for-judges line, which liberal groups and many senators sought to defend for weeks in advance of the hearing, was thrown over the side by the nominee in the first hours of questioning.
Conservative groups claimed credit for forcing Sotomayor to repudiate Obama’s claim that “empathy” could and should play an important role in some deciding cases. While it was probably the most newsworthy moment of the generally dull hearings, the judge dismissed Obama’s view so readily and so bluntly (and apparently with White House acquiescence) that it quickly cleared that issue off the table.
“Judges can't rely on what's in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It’s the law,” Sotomayor declared. “We apply law to facts. We don’t apply feelings to facts.”



2009-08-09 - Article -
Jeff Sessions says he'll watch 'empathy standard' for future Supreme Court nominees
blog.al.com
Alabama Senator Jeff Sessions told a conservative magazine today that he plans to watch for an "empathy standard" for future Supreme Court nominees.
"It's going to be incumbent on Republicans to examine future nominees from the Obama administration as to the empathy standard, background, and approach to law," Sessions told the National Review Online today. "The public will not look favorably on packing the courts with activist judges with agendas. This is beginning of national discussion about the role of law in America, and we've already seen a number of troubling nominees. We have a long battle ahead."

 

 

2009-08-07 - Article -  Mario Diaz, Esq. - Life and Death of the 'Empathy Standard'
 humanevents.com
President Obama has lost more than he gained with the nomination of Judge Sonia Sotomayor to the United States Supreme Court.  Though Sotomayor’s confirmation is now behind us, any reasonable person who followed the hearings closely has to admit that the president’s entire approach to judicial nominations has been compromised.   The famous “empathy standard” suffered a devastating blow at the hands of Senator Jeff Sessions (R-Ala.) who led the Republican charge that discredited it thoroughly in the hearings.



2009-08-07 - Article -
 JOSH GERSTEIN - Supreme Court snoozer for Sotomayor
 politico.com
Obama’s empathy-for-judges line, which liberal groups and many senators sought to defend for weeks in advance of the hearing, was thrown over the side by the nominee in the first hours of questioning. Conservative groups claimed credit for forcing Sotomayor to repudiate Obama’s claim that “empathy” could and should play an important role in some deciding cases. While it was probably the most newsworthy moment of the generally dull hearings, the judge dismissed Obama’s view so readily and so bluntly (and apparently with White House acquiescence) that it quickly cleared that issue off the table. “Judges can't rely on what's in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It’s the law,” Sotomayor declared. “We apply law to facts. We don’t apply feelings to facts.”

 

2009-08-07 - Article -  James Oliphant - Sonia Sotomayor confirmed 68-31 by Senate
chicagotribune.com

"By the end of the hearing not only Republicans, not only Democrats, but the nominee herself ended up rejecting the very empathy standard the president used when selecting her," Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, said Thursday. "This process reflected a broad public consensus that judges should be impartial, restrained and faithfully tethered to the law and the Constitution. It will now be harder to nominate activist judges."...
"Some of those choosing to oppose this historic nomination have tried to justify their opposition by falsely contending that President Obama is pitting empathy against the rule of law," Leahy said. "This president and this nominee are committed to the rule of law. They recognize the role of life experience, not as a substitute for the law or in conflict with its mandates, but as informing judgment."
 

2009-08-07 - Article -  Hatch and Bennett, senators from the NRA
standard.net
“America needs judges who are guided and controlled not by subjective empathy that they find inside themselves, but by objective law that they find outside themselves,” said Hatch, a member of the Senate Judiciary Committee, who for the first time in his 32 years in office voted against a Supreme Court nominee.”


 

2009-08-06 - Article - Senator Sessions on Sotomayor
National Review Online today
On her rejection of the "empathy standard" during her confirmation hearings:
Sessions: Her rejection of the empathy standard damages that concept for future nominees. It deserved damaging, and it deserved a stake through its heart. It’s just not law; empathy basically suggests that a person can see the parties and be influenced. It’s more akin to politics than law.  As someone who has spent time in court as a lawyer and as a judge, that to me is a fundamental threat to the heritage of law that we have in this country, and others did too.
Last year during the campaign, we had a big discussion on the empathy standard, and the president had already mentioned it before he picked Judge Sotomayor. He affirmed he was looking for a judge with empathy. The danger with this administration is that they change the words without changing the results. On future nominees, they may not cite the word "empathy," but they may indeed select someone with that same basic outlook on the law.


2009-08-06 - Fox -  Sen. Jeff Sessions lays out issues he finds with Justice Sotomayor  - Video - OK
foxnews.com
That we had a good discussion about the empathy standard that the president had raised. He rejected that I didn't say many senators defending it. And I think that we had an education moment with the American people. And that maybe the political leaders that they expect judges to be unbiased and objective. And not allow their personal feelings -- Things there opinions on the day."

 

2009-08-06 - Article -  James Oliphant - Sonia Sotomayor confirmed 68-31 by Senate
Chicagotribune
Over three long days of confirmation hearings, Sotomayor pledged "fidelity to the law" and rejected the "empathy standard" that Obama invoked when the Supreme Court vacancy arose. The president had said that justices sometimes need to use empathy to understand the effect the court's decisions have on the lives of ordinary Americans. But Sotomayor broke with Obama over that notion, a moment her conservative critics said was particularly significant.
That had Republicans also claiming victory Thursday, saying it will be harder now for the president to nominate a liberal jurist if another court vacancy comes.

 
 

2009-08-06 - Article -  Charles Trentelman - Hatch and Bennett, senators from the NRA
Standard.net
Sen. Hatch is being a bit more cagey. His statement in the SL Tribune says:

“America needs judges who are guided and controlled not by subjective empathy that they find inside themselves, but by objective law that they find outside themselves,” said Hatch, a member of the Senate Judiciary Committee, who for the first time in his 32 years in office voted against a Supreme Court nominee.”

He’s not mentioning the NRA, which is in his favor, but he’s going back to that silly stuff about how her stated “empathy” will control her decisions, not “strict rule of law,” the fictional idea that law is so cut and dried that judges need be only computers, assessing evidence and spitting out a ruling. Sen. Hatch, of course, is one of the larger proponents of the “activist judge” bugaboo — any judge who doesn’t spint out a ruling that Sen. Hatch, guided by his own history, background and cultural upbringing must, perforce, be changing the law.



2009-08-06 - Article -  Senate confirms Sotomayor for high court
msnbc.msn.com 
The GOP decried Obama's call for "empathy" in a justice, painting Sotomayor as the embodiment of an inappropriate standard that would let a judge bring her personal whims and prejudices to the bench.  Her writings and speeches "reflect a belief not just that impartiality is not possible, but that it's not even worth the effort," said Sen. Mitch McConnell, R-Ky., the minority leader. "In
Judge Sotomayor's court, groups that didn't make the cut of preferred groups often found that they ended up on the short end of the empathy standard."

 
 

2009-08-06 - Article -  seth abramson - Why Empathy Matters in the Law
sethabramson.blogspot.com

That empathy plays a significant role in trial-court jurisprudence is I think inarguable; whether and how it functions in appellate jurisprudence--which sees judges merely "interpreting" state and federal statutes and state and federal constitutions--is the open question the Sotomayor hearings might otherwise have been used to intelligently address (albeit the judge herself would almost certainly have been a casualty of the conversation).... Empathy has never been more, or less, than being able to understand the views and experiences of people differently situated from oneself.


 

2009-08-06 - Article - Seth Abramson -  Why Empathy Matters in the Law
some are openly wondering what will happen to the role of empathy in American jurisprudence following Sotomayor's backpedaling on the issue during her confirmation hearings. That empathy plays a significant role in trial-court jurisprudence is I think inarguable; whether and how it functions in appellate jurisprudence--which sees judges merely "interpreting" state and federal statutes and state and federal constitutions--is the open question the Sotomayor hearings might otherwise have been used to intelligently address (albeit the judge herself would almost certainly have been a casualty of the conversation).


 

2009-08-05 - Article - Mario Diaz - Life and Death of the 'Empathy Standard'
humanevents
President Obama has lost more than he gained with the nomination of Judge Sonia Sotomayor to the United States Supreme Court.  Though Sotomayor’s confirmation is now behind us, any reasonable person who followed the hearings closely has to admit that the president’s entire approach to judicial nominations has been compromised.  
The famous “empathy standard” suffered a devastating blow at the hands of Senator Jeff Sessions (R-Ala.) who led the Republican charge that discredited it thoroughly in the hearings. You have to remember that this is an approach that the president has been refining for years; he even used it to vote against Chief Justice Roberts and Justice Alito.  Here is what he said to justify his vote against the chief justice:
....
Empathy? What empathy?  Now that the hearings are over and liberals are realizing what they have done, expect them to go into emergency mode.  The defibrillator is out, and they’ll try to give the empathy standard “mouth-to-mouth,” but it’s too late.  They can try to hide the body, but they won’t be able to get rid of the smell.

 

 2009-08-05 - Article - Michael Freeman - We're supposed to see empathy as a bad thing?
 minnesota.publicradio.org Before nominating Judge Sonia Sotomayor to the U.S. Supreme Court, President Obama said he viewed the "quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." Ultraconservatives immediately protested, labeling empathy as "lawlessness," "social engineering" and "activism." Unfortunately, following the now common and safe path to confirmation, Sotomayor declined to discuss empathy, saying of judges, "We apply law to facts. We don't apply feelings to facts." ....   In contrast, empathy seeks to understand at the level of the heart, and to apply the law with that full understanding.
Let's be clear: Nobody is saying empathy should trump the law or the facts. But it is an important tool in the judicial tool box. Those outraged by the president's remark should explain why a judge should not try to understand complicated legal problems in every way possible.



 2009-08-05 - Article - Media Matters - Fox Bream forwards McConnell double standard on empathy
mediamatters.org - Video - OK
references Fox video August 4 edition of Fox News' Special Report with Bret Baier:
Fox News Supreme Court reporter Shannon Bream reported that "Senate Minority Leader Mitch McConnell renewed his concerns that [Supreme Court nominee Sonia] Sotomayor will govern based on feelings, rather than law," and aired a clip of McConnell saying, "Empathy is only good if you're lucky enough to be the person or group that the judge in question has empathy for. In those cases, it's the judge, not the law, which determines the outcome." But Bream did not mention McConnell's previous votes to confirm Justices Samuel Alito and Clarence Thomas, who discussed the importance of their personal experience during their confirmation hearings.

 

 2009-08-05 - Article - Margaret Russell and Marilyn Edelstein - Empathy is important in making judgments
 insidebayarea.com

"Empathy for one party is always prejudice against another."

Sen. Jeff Sessions, fervid critic of Judge Sonia Sotomayor and President Barack Obama, uttered these startling words in the first hour of the Senate Judiciary Committee confirmation hearings for Sotomayor's elevation to the U.S. Supreme Court. As professors who strive to teach students that the understanding of texts and of life is deeply enriched by ethical principles of empathy, conscience and compassion, we were left aghast by the empathy-bashing on national television.  What is empathy, and why are Sessions and other conservative Senators saying such terrible things about it? Empathy is commonly defined as the ability to imagine, identify with, and potentially share another's experiences, perspectives and feelings. It is about process, rather than result, and about intellect as well as emotion...

John Stuart Mill, who argued in "On Liberty" that we must understand others' points of view, right or wrong, to understand, clarify, and, if need be, correct our own positions. ...

British poet Percy Shelley argued that a person, "to be greatly good, must imagine intensely and comprehensively" and must "put himself [or herself] in the place of another and of many others." ...

In literature, law and life, the exercise of empathy enlarges our capacity to appreciate and understand the narratives and perspectives of others unlike ourselves.

Margaret Russell, an Oakland resident, is a professor of Constitutional Law at Santa Clara University, and board member of the Equal Justice Society and the ACLU. Marilyn Edelstein is an associate professor of English at Santa Clara University.

 

 2009-08-01 - Article -  GARY KNOX, Meanings of words often drift
yumasun

Preceding Sotomayor's nomination, President Obama noted that he would look for a nominee with “empathy.” Opposition spin artists salivated over the word choice; they knew most of us don't know its real meaning. Perversely they sought to convince us that there is something morally wrong, even un-American, about an empathetic person. Absolutely wrong!  Indeed, the concept is basic to maintaining democratic governance.

To put my argument simply: Democracy cannot succeed if we don't have at least a cadre of empathetic activist leaders. Indeed the more empathetic we all are, the better for our societal and political success. Sadly, however, empathy remains a quality in short supply.

Empathy's meaning is simple and straight forward. Empathy is being able to describe events from the perspectives of people who hold different views. It does not mean that empathetic people are in anyway sympathetic to those other people, though they might be. (Failure to understand differences between empathy and sympathy is the crux of the ruckus over the president's word. Shame on us for allowing political hacks to impose a false definition on this critical concept.)  

Let me state it again. Empathy does not mean empathetic persons embrace the thoughts, aspirations or ideas of others. One can, in fact, believe the exact opposite of any person with whom one is empathizing. Empathy means that one can accurately portray the world-rightly or wrongly-as though in the other person's shoes.

Empathy is critical for democracy. Our governance system, we suggest, implies that whenever possible, we should strive for win-win problem solutions. Such everyone-a-winner outcomes typically emerge, however, only as conferees understand a problem from the perspectives of all participants. Only then can we achieve common ground as a means to further everyone's hopes and aspirations.

 


July 2009

 

2009-07-30 - Article - Aysha Bagchi - Sense and Nonsense: Sotomayor, Gates and the E-word
 stanforddaily.com

The E-word has gotten a bad rep as of late, and it doesn’t deserve it. In fact, the past few weeks have been a big lesson in why empathy–the ability to understand and share the feelings of others–is so important. In the aftermath of Sonia Sotomayor’s Supreme Court nomination, Republicans came armed with accusations that Obama appointed a “judicial activist” under the code word “empathy.”  Empathy, according to some outspoken Republicans, means showing bias or prejudice when considering claims or representing people. It is a warm-and-fuzzy code word for “legislating from the bench” with a specific agenda (most often to take away guns, define marriage and promote abortions). It seeks to override the law. It is undemocratic. The irony of the recent condemnation of empathy is that people of all political ideologies at least empathize with like-minded people. .... Empathy is a crucial factor in picking judges, electing officials and understanding any debate. Extending our empathy challenges us to ask questions we don’t like to–to walk down paths that lead us away from our cloisters. It is, in effect, opening another window. Empathy complicates matters, which is a good thing; politicians need to stop giving it a bad name.
 

 2009-07-30 - Article -  GEORGE F. BALL - Real Lesson Of Cambridge Moment Is Injustice Of Misapplied Empathy
 investors.com

President Obama has said he intends to appoint Supreme Court justices and, it can be assumed, other federal judges, who bring a sense of "empathy" to the bench. This emphasis on "empathy" ("the experiencing as one's own, the feelings of another") for many lawyers is the antithesis of blind justice that is the hallmark of the U.S. judicial system.  why empathy is a bad thing when striving for justice? And what would an empathetic judge look like when evaluating disputes?  ....Empathy is important if you are a social worker, a pastor or a rabbi. And it has many forms — gender empathy, ethnic empathy, victim empathy, poverty empathy, etc. On the other hand, what I took away from my legal education at the University of Notre Dame, a law school that clearly emphasizes moral imperatives in life, was that a lawyer should never conflate emotions (empathy) with the facts or law when reaching a legal conclusion so as to tip the scales toward one party or another...Malpractice insurers and other deep-pocket defendants know full well that "empathetic" pro-plaintiff judges can make the difference in a frivolous case between winning and losing at trial or by driving up the settlement value with millions of dollars at stake.


 

2009-07-28 - Article - Jeff Sessions - Opposing view: A confirmation conversion
Nominee lacks deep convictions needed to resist judicial activism.
blogs.usatoday.com
She rejected the president's "empathy standard," abandoned her statements that a judge's "opinions, sympathies and prejudices" may guide decision-making, dismissed remarks that personal experiences should "affect the facts that judges choose to see," brushed aside her repeated "wise Latina" comment as "a rhetorical flourish," and championed judicial restraint.  Judge Sotomayor's attempt to rebrand her previously stated judicial approach was, as one editorial page opined, "uncomfortably close to disingenuous."

 

2009-07-27 - Fox - Your World - Sessions vs. Sotomayor - Video - OK
Top GOP senator plans to vote against Supreme Court nominee
  reveal whether or not they show empathy.
 

2009-07-xx - Video -Terry Maroney - Role of empathy in Supreme Court - Video - OK
Vanderbilt.edu

Watch video of Terry Maroney, assistant professor of law, speaking on the role of empathy in the Supreme Court.
“I think empathy plays a very important role in a court because judges are asked to make decisions that affect people. And very frequently the law actually requires judges to put themselves in the shoes of another person… a judge has to have the capacity to imagine the emotional life of another person…” “I think [Judge Sotomayor] has broken the fourth wall in a way; she’s talking about something that people prefer to leave unsaid. Because people, for a variety of reasons, like the image of judges as somehow impartial umpires who call balls and strikes. Now I’ve actually always been interested how umpires would think of the analogy because umpiring requires judgment… it’s not as objective as some people would like it to be…” 
 

2009-07-21 - PRESS RELEASES - Mitch McConnell - Judge Sotomayor Does Not Meet the Test

Republican Leader says the introduction of a new standard — this empathy standard — forces a reevaluation of the degree of deference a President should be granted-


 

2009-07-21 - article - Stuart Taylor - Repudiating Obama's Judicial Philosophy
ninthjustice.nationaljournal

Perhaps the most remarkable exchange during the Senate Judiciary Committee's hearing came on Tuesday, when President Obama's nominee flatly repudiated his judicial philosophy.
This is all the more striking because it's a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama's "empathy" criterion for choosing nominees.

“Now, as I’ve stated repeatedly throughout this debate, empathy is a very good quality in itself. And I have no doubt that Senator Obama, now President Obama, had good intentions, and that his heart was in the right place when he made this argument. But when it comes to judging, empathy is only good if you’re lucky enough to be the person or the group that the judge in question has empathy for. In those cases, it’s the judge, not the law, that determines the outcome. And that’s a dangerous road to go down if you believe, as I do, in a nation not of men, but laws.


2009-07-21 - article - Beth Resler Walters -  In defense of empathy
 wfae.org

From some people's reactions, you’d think empathy was the eighth deadly sin. Critics seemed to have confused it with feeling sorry for someone and automatically being on their side.  But that is closer to “sympathy.”
Empathy is something else. It is an intellectual ability, a capacity of the mind. It is the capability to move out of the limitations of how I see or experience something and understand that someone else has a different view — and a view that is of value to me, because it helps me perceive or understand more fully. Empathy helps me to be smarter, you might say.
Empathy listens. It doesn’t listen just waiting to announce my more valid take on things. It really listens. And empathy, if it doesn’t understand right off, asks questions and listens more until it does.
Empathy is hard work. It takes effort to give up the egocentric, very human belief that my perspective is the only right one.
And empathy cooperates. It knows that one plus one can come up with so much more than I can alone.
Empathy respects the other.

 

2009-07-19 - article -  Wall Street Journal - Jess Bravin  - Empathy' Takes a Knock in Confirmation Hearings
JULY 19, 2009, 8:25 P.M. ET
'Empathy' Takes a Knock in Confirmation Hearings

Asked during the hearing if she agreed with Mr. Obama that the "critical ingredient" in deciding the hardest cases is empathy, or "what's in the judge's heart," Judge Sotomayor didn't hesitate.

"No sir," she told Sen. Jon Kyl (R., Ariz.). "I don't wouldn't approach the issue of judging the way the president does," she said. "It's not the heart that compels conclusions in cases, it's the law."...

"I don't know if many votes were changed, but it was good to see the nominee renounce the Obama empathy test," said Alabama Sen. Jeff Sessions, the committee's ranking Republican. (find this statement)



2009-07-19 - article -  Wash. Post labels judicial empathy a "liberal" idea
http://mediamatters.org/research/200907200001

The Post reported that during her confirmation hearings, Judge Sonia Sotomayor "distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from [President] Obama's view that a judge should have empathy -- an idea floating within liberal legal thought." The article also reported that Doug Kendall, president of the Constitutional Accountability Center, "said liberal legal thinkers must devise new ways to build public support for their ideas to make it easier for Obama to pick outspoken judges," and quoted him saying, "Neither the old progressive idea about the living Constitution nor the new idea of judicial empathy have polled very well."


 

2009-07-19 - article - Washington Post - Amy Goldstein - Little for Liberals in Confirmation Hearings
As Sotomayor and White House Avoid Ideology, Some on Left See Wasted Chance
By Amy Goldstein and Paul Kane
Washington Post Staff Writers
Sunday, July 19, 2009

The hearings were a moment of history that liberals had awaited for 15 years: an opportunity for a Democratic president's Supreme Court nominee to inject into the public dialogue fresh ideas about the Constitution and the law, beginning to recalibrate a court that has gravitated to the right

Yet Sotomayor did not articulate such a vision. In answering Cardin, and in scores of other times during four intense days in the witness chair, she eluded efforts of Democrats and Republicans alike to draw out any statement of liberal thought.


 

2009-07-16 - article - George Joyce - Sonia Sotomayor's Troubled Eyes
Americanthinker.com

What America needs right now is courage and mutual respect -- not empathy and sensitivity.  Anyone with an ounce of dignity should be appalled by the patronizing behavior on display since the Senate confirmation hearings began.  Showing empathy to a woman with a frightening history of color consciousness on the bench and in many of her personal statements may score political points with voters in some swing states, but this dubious strategy comes with a profound price tag: the degradation of American civic life...

Behind Sonia Sotomayor's judicial "empathy" in other words is a view of human nature that degrades both victim and benefactor. In the words of historian Christopher Lasch: "Compassion has become the human face of contempt."

Lasch observed quite rightly in his book The Revolt of the Elites that "trust, in a democracy, can only be grounded in mutual respect."  Respect is destroyed, says Lasch, when the purveyors of social justice use empathy and compassion instead of "impersonal standards impartially applied" to measure the accountability of American citizens:

 

2009-07-15 - article - JAMES TARANTO - The 'Empathy' Paradox
wsj
Maybe she isn't La Jueza Empática after all. President Obama said he planned to nominate judges with "empathy," but Justice-designate Sonia Sotomayor, in an exchange yesterday with Sen. Jon. Kyl (R., Ariz.) rejected the idea. Here's the transcript:

Blogress Ann Althouse, in an apparently self-produced video depicting herself talking on the phone to a radio interviewer, offers this explanation:

 

2009-07-15 - article - J.E. Robertson - Empathy is Not Prejudice
Related subjects: Congressional Oversight, J.E. Robertson, Judicial Rulings, Opinion, U.S. Law, U.S. Politics, U.S. news

EMPATHY IS NOT PREJUDICE: it is the ability to imagine the point of view of the other. Without this ability to engage in thoughtful outreach, beyond one’s own personal realm of experience, and empathize with the human situation of the other, no jurist can begin to understand the human meaning of the arguments made in their court, and objectivity remains wholly beyond their reach.

Empathy is not sympathy. Sympathy means feeling what the other feels, experiencing grief at the other’s grief, loyalty in kind with the other’s loyalties, taking sides; empathy is the ability to comprehend the meaning of another’s experiences, and does not entail adopting or sharing the other’s views. Empathy for a judge means the ability to see how both parties arguing before a court could arrive there based on legitimate human experiences and assertions about the protections and provisions of the law.

 

 mediamatters.org

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet. The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

 

2009-07-15 - article - Deb Weinstein - Empathy and the law—experts discuss whether the two go together
northwestern.edu

“We would like to think that human beings are entirely rational, and one plus one equals two,” said Dev Patnaik, author of “Wired to Care” and CEO of the San Mateo, Calif., growth strategy firm Jump Associates. “But if that were true,” he added, “we wouldn’t need lawyers and judges . . . [but] the law is not like that; the law has nuance.” Calling President Barack Obama “chief empathy officer for the nation” Patnaik said one crucial element missing from the discussions about empathy during the hearings is a misunderstanding about what it means to be empathetic. According to Patnaik, empathy is not about giving people a break.


 

2009-07-15 - article - Andrew Price - A Quick Comment on this Empathy Issue
good.is

One thing that’s come up again is this issue of whether a justice should be “empathetic.” Obama first floated this thought back on July 17, 2007, at a Planned Parenthood conference, saying a Supreme Court justice should be someone “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom.

I think it’s crazy to argue that empathy interferes with applying the law. There are all sorts of aspects of judging that not only benefit from, but require, empathy. A good example is the recent Supreme Court decision on the 13-year old girl who was strip searched at school for ibuprofen. To rule that a strip search is intrusive, as they did, you have to understand the trauma it would cause a girl, and that requires understanding her feelings—an ability otherwise known as empathy. 

 

 

2009-07-14  -  article - Chuck Grassley - GOP Fears Sotomayor's 'Empathy' - video
Chuck Grassley

Chuck Grassley - GOP Fears Sotomayor's 'Empathy'

GOP Fears Sotomayor's 'Empathy'
Sen. Chuck Grassley says Sonia Sotomayor's "empathy" is "troubling."
Jul 13, 2009 01:29 PM Video from Politics ABC News

On NPR Audio -  Grassley Admits That ‘Empathy Standard’ He Finds ‘Troubling’ In Sotomayor Didn’t Apply To Alito
 

2009-07-14  -  article -  Ria Misra - Sotomayor Hearings: The Empathy Debate
politicsdaily

One of the more curious debates the Supreme Court confirmation hearings is drawing out is on the role of empathy in judging -- and it's worth watching if for no other reason than seeing typically glad-handing politicians trying to explain why empathy is suddenly a bad thing.  ... Judges having empathy, though, is not a problem. Judges are people, and the legal system tends to deal with people in times of crisis. Frankly, I'd be more concerned with a judge who claimed she felt nothing at all than with a judge who bases her decisions on the law, but still manages to drum up some human emotions about the people in front of her.


 

2009-07-14  -  article - Sotomayor breaks with Obama on empathy
politico
 

Sen. Jon Kyl (R-Ariz.) asked Sonia Sotomayor if she agrees with something Barack Obama said as a senator when deciding to vote against John Roberts as chief justice of the Supreme Court. At the time, Obama said: "In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." Yesterday Kyl said she would vote against her if she agreed with Obama's comments. But Sotomayor said she didn't agree with that. "He has to explain what he meant by judging," Sotomayor said. "Judges can’t explain what’s in their heart — the job of a judge is to apply wthe law. It’s not the heart that compels conclusions in cases, it’s the law."

2009-07-14  - CNN -  Wolf Blitzer - George H.W. Bush  talk about empathy  - Video - OK
Blitzer notes that George H.W. Bush "talk[ed] about empathy ... in making the case for Clarence Thomas"
mediamatters.org
 youtube
(shows Bush talked about empathy, now calls it the E word. Alex Castellano R consultant comments. Sotomayor will be biased. Maria Echaveste  conservative double standard) 



2009-07-14 - CNN - Carol Costello - Judicial Empathy  - Video - OK
http://www.youtube.com/watch?v=6OXAGiLrp9s
Empathy the new litmus test. The E word.
(A piece showing the empathy discussion. pros and cons)

 

2009-07-14 - ABC - GOPs past embrace of empathy   - Video - OK
Nightly news shows ignore context of Sotomayor remarks, GOP's past embrace of "empathy"
mediamatters.org
 


2009-07-14 -Sotomayor rejects Obama's notion of the empathy in judging - Video - OK
youtube
"I'm on the phone doing a call-in show on Minnesota Public Radio, commenting on Day 2 of the Senate Judiciary Committee's confirmation hearings for Sonia Sotomayor, responding to a question about how Sotomayor has dealt with Obama's idea that "empathy" should play a role in judging"  Conservatives are claiming Sotomayor is distancing herself for Obama's call for more empathy.

 

2009-07-14??  - CNN - Hatch Asks Sotomayor About Empathy & The Law - Video - OK
Youtube
Hatch asks about empathy.  Sotomayor answers.
(the issue in a nutshell)


 

2009-07-14  - article - Firefighters say the law matters, not empathy
James Oliphant
latimes

"We did not ask for sympathy or empathy," Vargas said. "We asked only for evenhanded enforcement of the law and . . . we were denied just that."




2009-07-14 -Ann Althouse - Sotomayor has backed away from Obama empathy   - Video - OK
 althouse.blogspot   article - video
Did you notice how Sonia Sotomayor has backed away from any identification with Obama's notion that "empathy" is a component of judging?
I sure did, as you can see here
 


 

 

20009-07-13 - audio - Mark Levin on Empathy
Levin talks about Obama, Sotomayor, and their idea that judges should have empathy. Conservative attack.

 

2009-07-13 - Fox News misrepresents Sotomayor, Obama quotes to stir controversy
Media Maters
SUMMARY:
Fox News' special about Judge Sonia Sotomayor misrepresented Sotomayor's quote that "the Court of Appeals is where policy is made" to claim that she "apparently confess[ed]" to "legislating from the bench." The special also misrepresented President Obama's quote about "empathy."

Baier also aired a cropped clip of President Obama's May 1 statement that he views "empathy" as "an essential ingredient for arriving at just decisions and outcomes" before airing video of The National Journal's Stuart Taylor asserting that "[t]he empathy line of argument may suggest to some, well, not really; we'll do better justice to the poor than to the rich. And so, that's why it's troublesome, I think." Baier later stated, "[T]hat is the issue. Would a Justice Sotomayor, in the name of empathy, see fit to place her thumb on the scales of justice from time to time?" But Baier ignored the statement Obama made immediately following the one he aired, in which Obama said: "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role."

 

 

2009-07-13 -  Kos - The GOP's continued war on empathy
by kos
  As conservatives themselves note, Bush and Rove wielded compassionate conservatism as an empty political ploy to win "swing voters". And "compassion" is no different than "empathy". So, the last Republican to have electoral success (even though he lost the popular vote) was a Republican who pretended to be emphatic. Now, his party has determined that Bush failed because he tried to be compassionate, and they've resorted to openly sneering at the word.
Empathy - Know How to Explain It (Repost)
 

 

2009-07-13 - Dailykostv - The Republican War on Empathy  Sotomayor hearings - Video - OK
Dailykostv.com
Jed Lewison 
Jul 13, 2009


2009-07-13 - Dailykostv - Coburn praised Alito’s empathy now he slams Sotomayor  - Video - OK
Shorter Tom Coburn — empathy is okay if you’re a white guy:
Dailykostv
Jed Lewison
Jul 13, 2009

 

2009-07-13 -  article - Richard Just -  The New Republic: The Empathy War
NPR.org, July 15, 2009 ·
The New Republic: The Empathy War
by Richard Just

For the past few weeks, we've heard a lot of debate about whether constitutional law can possibly survive close contact with the concept of empathy. But after spending the afternoon at the Sotomayor hearings, listening to senators left and right prattle about empathy and its relationship to justice, I have another question: Can the concept of empathy survive close contact with constitutional law? I ask because empathy has become the watchword of these hearings—and in the process it is getting battered, vilified, and badly distorted."

"Democrat Chuck Schumer began his remarks by noting (promisingly) that he thought empathy was being defined incorrectly. But he then proceeded to simply make things worse. Trying to be helpful to Sotomayor, he sought to distance her from the concept of empathy altogether. He ran through a series of cases in which Sotomayor had voted against sympathetic parties—for instance, relatives of those killed in the 1996 TWA crash off of Long Island—then went on to triumphantly declare her unencumbered by empathy: "The only point I'm making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a p

pretty good body of law to look at." Why would Schumer conflate "empathy" and "sympathy"? Sympathy is a narrow personal emotion; empathy is a principled tool for analyzing the world around us. And why would he play into conservative hands by implying that judicial empathy is something to be scorned rather than something to be celebrated?"

"Unfortunately, empathy lost in a big way."

 

2009-07-13 -  On Education, Empathy & Affirmative Action
By Lawrence F. Keller, Associate Professor, Cleveland State University 

Second, empathy is a necessary ingredient for any successful professional. Professional is best understood as a commitment to core values and their consistent application. In fact, the lack of empathy, and the demonizing of judicial activism, appear to indicate a belief in the worst type of law, what is called "black letter law." Stemming from a belief in progress and technology, our culture has in many ways adopted a notion of objective knowledge that is not time, culture and individually bound.,...

Empathy is absolutely necessary for an effective professional. Empathy united with knowledge of and a commitment to community qua constitutional values drives informed and just law making. Similarly, Judicial activism per se is not a problem and is part of the nature of a common law based system of community justice. Activism that is not tied to knowledge, values and an understanding of the situation involved is indeed a problem.

 

 

2009-07-13 - Glenn Beck - Sonia Sotomayor - So Empathetic - Video - OK
more Glenn Beck nasty comments about empathy
(uses a ridiculing tone with the word Empathetic, "She's sooo Empathetic" )

 

 

2009-07-12 - Article - RUTH PETERSON - empathy as a justice must be impartial
Op-ed colulmn: Sotomayor’s ‘empathy’ as a justice must be impartial
Sunday, July 12, 2009
RUTH PETERSON

Years ago I took a one-evening course on “Empathic Listening.” The culminating exercise was to choose partners and, for a given amount of time, to listen to your partner recite his problem. We then repeated back to our partner what we had heard. We were to simply acknowledge that person’s claims without giving suggestions, or commentary of any kind.


 

2009-07-12 - Article - David G. Savag - Judging the judge: Senate committee to question Sotomayor this week
Many Republicans, however, are not convinced. They assert that as a justice, Sotomayor probably would follow Obama's call for "empathy" -- and show it for some litigants more than others. "Whatever this empathy standard is . . . it is more akin to politics than law," Sen. Jeff Sessions (R-Ala.) said.

But Sessions, the ranking Republican on the Judiciary Committee, has linked that speech to Obama's comment about empathy and Sotomayor's decision last year to reject a discrimination claim from white firefighters in Connecticut. And the lawmaker has questioned whether Sotomayor would be an impartial judge.

"Empathy is great, perhaps, if you're the beneficiary of it," he said in a Senate speech last week. "But it is not good if you are the litigant on the wrong side of the case, if you don't catch the judge's fancy, or if you fail to appeal to a shared personal experience."

 

 

2009-07-11 - Article - Sotomayer's Empathy: Not for the Birds
That a candidate for the Supreme Court needs empathy, as Obama emphasized, is almost too obvious to pay attention to. Because apart from psychopaths, all humans are endowed with empathy, which is the capacity to be affected by the emotional states of others, and to become part of their situation. I can see how conservatives won't see much need for it, because their ideology tries to operate without empathy, such as when Rush Limbaugh mocked Michael J. Fox's Parkinson's symptoms

 

 

2009-07-10 - Fox - Chris Wallace - Factor in empathy - Video - OK
Sotomayor in Focus
Fri, 10 Jul 2009
 Issues, politics facing president's first pick for the Supreme Court
" The confirmation process for a Supreme Court nominee -- Sonia Sotomayor begins... "

 I suspect she'll be she'll be confirmed. I would hope those surges of make up their mind based on what they hear in the hearing more of a fair hearing."

" Republicans will demand -- of -- view of the notion that instead of the traditional lead just passionate and objective approach to judging based on facts law and the constitution. Judges according to President Obama should also factor in empathy. I think that is a dangerous philosophy and if any thing from her speeches. Judge judge Sotomayor. May be beyond that. She. Really validation. Says it's legitimate for a judge to bring their personal -- And -- vision is to -- in the decision making process."

" An appeals court judge first tapped for the federal bench by the first President Bush Sotomayor said in 2001 that sex and ethnicity may and will make a difference in judges. More than once she said things like quote I would hope that a wise Latina woman with the riches of experiences. Would reach a better conclusion that a white male who hasn't lived that life."

 

 

2009-07-09 -  Article - Brown - Sotomayor's Selective Empathy
 July 09, 2009
Townhall.com Columnist
Sotomayor's Selective Empathy
by Floyd and Mary Beth Brown

Judge Sonia Sotomayor is wrongly being sold by Team Obama as an "empathetic nominee." This adjective is shown a farce when one examines her record in two noteworthy cases involving Jeffrey Deskovic and Frank Ricci. In these instances, she acted callous and indifferent to the injustice and suffering of these men....

While Obama and his allies want you to believe Sotomayor is a wise, empathetic Latina, these three occurrences directly contradict the underlying argument of the Obama public relations campaign. Sotomayor is actually an advocate of old-fashioned identity politics. Justice is supposed to be blind, but in Sotomayor's case, what exists of her empathy is racially tinted. Republicans must vote against her confirmation if not given more time to look into her record. Obama shouldn't be allowed to appoint a racist to the Supreme Court.

 

 

July 10, 2009-07-10 - Article - Deborah O'Malley - Key Questions for Sonia Sotomayor
Heritage.org

Question #4: The "Empathy" Standard

President Obama has stated several times the importance of finding a nominee who displays empathy in judging. Legitimate criticisms have been raised concerning this standard, including questions as to how a judge should go about deciding which litigant is deserving of sympathy.

In some cases, all of the parties are sympathetic. In other cases, none are. In still other cases, the law may be unambiguously on the side of a party who is less sympathetic. If empathy is the guiding principle, how is a judge to decide these cases? And how do we separate empathy from personal bias?[10]

While empathy divorced from law is a dubious way to decide cases, you were arguably presented with the opportunity to display your empathy in the case of Ricci v. DeStefano. The plaintiff in the case, Frank Ricci, is a learning disabled firefighter who, as you recall, put considerably more time into preparing for the lieutenant's exam given his disability. Because of his dyslexia, Ricci had a friend record his exam textbooks into a tape recorder and spent every spare hour studying. After taking such great strides to overcome his disadvantage, he ranked sixth in the competition for eight lieutenant spots but was nonetheless denied the promotion on account of race.

Do you agree with President Obama that empathy is a proper way to decide cases? If so, why was Ricci unworthy of your empathy--or even of a full opinion from your court?
 

 

2009-07-08 - article - Paul Litton-  Sotomayor would have to make value judgments
'Follow the law!' does not answer questions on gay marriage, abortion, and life imprisonment for juveniles.
By Paul Litton
from the July 8, 2009 edition

For weeks we have heard the right wing lambaste President Obama's intention to nominate an empathetic person to the Supreme Court. The criticism is that empathy is irrelevant – or even harmful – to a judge's ability to interpret and apply the law.

Conservatives should acknowledge the complexities involved in legal analysis instead of damaging the public's understanding of a judge's role. As Judge Richard Posner has stated, "No serious person thinks that the rules that judges in our system apply ... are given to them the way the rules of baseball are given to umpires."


 

2009-07-08 - Article - Kermit Roosevelt - Why Judicial Activism Explains Little
July 8, 2009
Why Judicial `Activism' Explains Little
Kermit Roosevelt: The Notion Of Empathy Does A Better Job Explaining Differences Between Liberals And Conservative Jurists

Empathy, the Oxford English Dictionary tells us, is "the power of projecting one’s personality into (and so fully comprehending) the object of contemplation." Recently, in response to President Obama’s announcement that it was a quality he would seek in Supreme Court nominees, Orrin Hatch and Karl Rove have offered a different definition. Empathy, they say, is a "code word" for liberal judicial activism. ...

What explains the difference between the liberals and conservatives? The dichotomy between law and policy is no help here. Neither is the idea of activism, or facile analogies about judges being umpires rather than players. But empathy, as Obama described it, actually does a pretty good job.
 

 

2009-07-07 -  PRESS RELEASES  - Mitch McConnell - Ricci Raises Questions About Sotomayor’s Judgment
PRESS RELEASES
Ricci Raises Questions About Sotomayor’s Judgment
from the Office of Senator Mitch McConnell
Tuesday, July 7, 2009

“Is the way Judge Sotomayor treated the firefighters’ claims in the Ricci case what President Obama means when he says he wants judges who can ‘empathize’ with certain groups? Is this why Judge Sotomayor herself said she doubted that judges can be impartial, ‘even in most cases’? It’s a troubling philosophy for any judge — let alone one nominated to our highest court — to convert ‘empathy’ into favoritism for particular groups.


 

2009-07-01 - Questions of Senator Tom Coburn, M.D.
Nomination of Christopher H. Schroeder, to be an Assistant Attorney General, OfJice of Legal Policy
United States Senate Committee on the
http://legaltimes.typepad.com/files/schroeder-qfrscoburn.pdf

3. President Obama has described the types of judges that he will select as follows: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." What role do you believe that empathy should play in a judge's consideration of a case?

a. What role will empathy play in your vetting process for future judicial nominees?

b. Do you believe President Obama's judicial nominees thus far embody this idea of empathy toward certain groups?

 

2009-06-29 - Fox - Wendy Long - Firefighters Supreme Court   - Video - OK
Sotamayor in the Hot Seat
Video
Wendy Long of the Judicial Confirmation Network on what the controversial overturn means for the Supreme Court nominee.
firefighter comment
 Wendy Long (attacks  Sotomayor is about Favoritism)



 

2009-06-29 - Judicial Watch Educational Panel - Curt Levey - Sotomayor empathy - Video - OK
Curt Levey
Video  Videos
Judicial Watch Educational Panel

  Various Videos
   Transcripts - various references to empathy
(check and download more videos )

Will they vote to confirm a justice who will make her decisions based on empathy and her personal feelings about a litigant? Or will they demand a nominee who uses the rule of law as a principal guide, applying the law equally to everyone who comes before the court, regardless of race, gender or sexual orientation? ....

But another thing that makes us – besides being the first of our lifetime, it’s also a great opportunity to have a great debate about the role of judges because Obama and Sotomayor, as Tom talked about, have been so honest about what they’re looking for. I mean, they both are on record as they don’t use the word "judicial activism" but they use every possible synonym for it, you know, taking empathy for certain groups into account, taking one’s life experiences into account, one’s, I think, heritage, one’s perspectives. It all comes down to "I’m not just going to look at the law and facts." That’s basically the difference between rule of law and judicial activism. ...

I don’t know how that squares with empathy, but we all know, again, empathy doesn’t really mean empathy. It’s a code word for favoring certain groups. So temperament is one problem. ..........

  • Curt Levey of the Committee for Justice also comments to OneNewsNow on what to look for: Curt Levey, executive director of the Committee for Justice, says Souter will not be missed.  "[President Obama] has said that he's looking for a judicial activist," says Levey. "He didn't use that actual word. He said he's looking for a judge who shows empathy by favoring certain groups -- pregnant women, minorities, so on, and so forth. That is the definition of judicial activism -- outcome-oriented judging."

 


2009-06-25 - Article - Conservative Groups See Teaching Moment
Thursday, June 25, 2009
By Amy Harder

The discussion, hosted by Judicial Watch, highlighted continuing concerns on the right about Sotomayor: the New Haven firefighters case, the "wise Latina" woman comment, gun rights and the "empathy" standard. But throughout the discussion panelists kept coming back to Obama. In fact, that's how Judicial Watch President Tom Fitton opened up the discussion.

"We have to give points to President Obama for clarity on his judicial philosophy," Fitton said. "Sotomayor is a constantly shifting landscape. She is moment-to-moment on her moods, bias and personal whims. That problem would arise with any Supreme Court nominee of Barack Obama's."...

"Putting politics aside, this is an important teaching moment," Levey said. "This is the first opportunity to debate the nominee of a Democratic president." He noted that Republicans did not seriously challenge President Clinton's nominees, Stephen Breyer and Ruth Bader Ginsburg.

 

 

2009-06-25 - Rush Limbaugh Show - Obama talks empathy means racists bigots -  Audio - OK
Limbaugh: When Obama talks of empathy, he means "I want ... racists and bigots" on the Court 
 http://mediamatters.org/mmtv/200906250031
Limbaugh: When Obama talks of empathy, he means "I want ... racists and bigots" on the Court
good for outrageous attacks
 

 

 

2009-06-24 - Article - Sessions - CONCERNS REGARDING SOTOMAYOR’S RECORD
SESSIONS RAISES CONCERNS REGARDING SOTOMAYOR’S RECORD
Wednesday, 24 June 2009 04:51
“[President Obama] says he wants someone who will use
empathy to certain groups to decide cases. That perhaps sounds nice, but when there is empathy towards one, is it not prejudice towards the other? There are always litigants on the other side, and they deserve to have their cases decided on the law.

 

 

2009-06-24 - Article - Mark Murray - Sotomayor: The GOP's fine line
Sotomayor: The GOP's fine line
 by Mark Murray
 Wednesday, June 24, 2009 9:18 AM

Roll Call: "In a series of Senate floor speeches, Republicans leveled their harshest criticism of Sotomayor to date, accusing the federal judge and President Barack Obama of espousing a view of the judiciary based on empathy that is little more than racial or gender prejudice."

More from Jeff Sessions.  “When there is empathy toward one, is it not prejudice toward the other? There are always litigants on the other side, and they deserve to have their cases decided on the law. ... What I’ve seen thus far in Judge Sotomayor’s record -- and presumably some of her views are the reason President Obama selected her -- cause me concern that the nominee will look outside the law and the evidence in judging and that her policy preferences could influence her decision-making."

 Mitch McConnell  "called Sotomayor’s empathy 'troubling.' "Judge Sotomayor’s writings offer a window into what she believes having empathy for certain groups means when it comes to judging. And I believe that once Americans come to appreciate the real-world consequences of this view, they’ll find the empathy standard extremely troubling as a criterion for selecting men and women for the federal bench,” he said.

 

 

 

 

2009-06-23 - Senate - Amy Klobuchar D-Min - video

 

 

2009-06-24 - Article - Leahy, Schumer & Menendez Respond To GOP
Leahy, Schumer & Menendez Respond To GOP

On Tuesday evening, Republicans went on the offensive against Sonia Sotomayor on the Senate floor. Judiciary ranking member

On Tuesday evening, Republicans went on the offensive against Sonia Sotomayor on the Senate floor. Judiciary ranking member Jeff Sessions, R-Ala., Minority Leader Mitch McConnell, R-Ky., and John Cornyn, R-Texas, raised the issues of Sotomayor's membership in the LatinoJustice PRLDEF (formerly the Puerto Rican Legal Defense and Education Fund), her rulings in cases like Ricci v. DeStefano and Hayden v. Pataki, and the "empathy" question.

 


 

2009-05-24 - Senate - Orrin Hatch - Empathy for Certain Groups
follows Jeff Sessions hatch followed by John Thune
2009-06-24 
http://www.c-spanarchives.org/congress/?q=node/69850&date=2009-6-23&hors=s
http://www.c-spanarchives.org/congress/?q=node/77531&id=9003885

President Obama has already described his understanding of the power and role of judges in our system of government. He has said he will appoint judges who have empathy for certain groups and that personal empathy is an essential ingredient for making judicial decisions. Right off the bat, President Obama's vision of judges deciding cases based on their personal feelings and priorities is at odds with what most Americans believe. A recent national poll found that by more than three to one, Americans
reject the notion that judges may go beyond the law as written and take their personal views and feelings into account.

 

2009-06-24 - Senate Session - - get video
C-SPAN 

Product ID:

287244-1

Format:

Senate Proceeding

Last Airing:

06/25/2009

Event Date:

06/24/2009

Length:

8 hours, 50 minutes

Location:

Washington, DC, United State

2009-06-24 14:02:06 ... THAT HE WILL APPOINT JUDGES WHO HAVE EMPATHY FOR CERTAIN GROUPS AND THAT PERSONAL...
2009-06-24 14:02:10 ... FOR CERTAIN GROUPS AND THAT PERSONAL EMPATHY IS AN ESSENTIAL INGREDIENT FOR MAKING...
2009-06-24 14:10:18 ... THE LEGISLATIVE BRANCH MAY EMPLOY EMPATHY TO MAKE THE LAW BUT THE JUDICIAL BRANCH...
2009-06-24 16:54:30 ... SAID "JUDGES SHOULD HAVE THE EMPATHY TO RECOGNIZE WHAT IT IS LIKE TO BE A...
2009-06-24 16:54:48 ... HEART." IT IS ADMIRABLE TO HAVE EMPATHY, A JUSTICE, IN A PERSON SITTING ON THE...

 

 

 

June 23 - conservatives attack Empathy in Senate -
sort these speeches of senators
day overview

   Jeff Sessions R-Ala.  - get video
           
http://www.youtube.com/v/mFb41ETt3us
        
 Text From the Congressional Record
   Mitch McConnell
R-Ky   - get video
      Text From the Congressional Record - 2009-06-23

   John Cornyn R-Texas - get video
          
http://www.youtube.com/v/6j6AZY2bDgc
 
    Orrin Hatch R-Utah
- OK
   
 


2009-06-23-Press  Releases - Mitch McConnell -Troubled by Use of Empathy Standard
PRESS RELEASES
McConnell ‘Troubled’ by Use of ‘Empathy Standard’
from the Office of Senator Mitch McConnell

The President has said repeatedly that his criterion for federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for president, and now as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. And based on a review of Judge Sotomayor’s record, it’s becoming clear to many that this is a trait that he’s found in this nominee.

“Judge Sotomayor’s writings offer a window into what she believes having empathy for certain groups means when it comes to judging. And I believe that once Americans come to appreciate the real-world consequences of this view, they’ll find the empathy standard extremely troubling as a criterion for selecting men and women for the federal bench.


 

2009-06-23 - Senate - Sessions - When there is empathy towards one - get video
Sessions: “When there is empathy towards one, is it not prejudice towards the other?”
Tuesday, June 23, 2009

Issues raised today include Sotomayor’s opinion in the New Haven Firefighters case, the influence of foreign law on her rulings, and the degree to which these and other decisions and writings indicate that Sotomayor fulfills President Obama’s “empathy standard” for selecting judges.

As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say--to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does--President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office:
 

 

2009-06-23 - Senate - Mitch McConnell - So-called empathy standard that President Obama employed - get video
Text From the Congressional Record

McCONNELL. Madam President, this morning I would like to turn my attention to the nomination of Judge Sonia Sotomayor to the Supreme Court and more specifically to the so-called empathy standard that President Obama employed in selecting her for the highest Court in the land.

The President has said repeatedly that his criterion for Federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for President, and again as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. Based on a review of Judge Sotomayor's record, it is becoming clear to many that this is a trait he has found in this particular nominee.

Judge Sotomayor's writings offer a window into what she believes having empathy for certain groups means when it comes to judging, and I believe once Americans come to appreciate the real-world consequences of this view, they will find the empathy standard extremely troubling as a criterion for selecting men and women for the Federal bench.

A review of Judge Sotomayor's writings and rulings illustrates the point. Judge Sotomayor's 2002 Article in the Berkeley La Raza Law Journal has received a good deal of attention already for her troubling assertion that her gender and ethnicity would enable her to reach a better result than a man of different ethnicity. Her advocates say her assertion was inartful, that it was taken out of context. We have since learned, however, that she has repeatedly made this or similar assertions. ...
 

! don't believe a judge should rule based on empathy, personal preferences, or political beliefs, but if any case cried out for empathy--if any case cried out for empathy--it would be this one. The plaintiff in that case, Frank Ricci, has dyslexia. As a result, he had to study extra hard for the test--up to 13 hours each day. To do so, he had to give up his second job, while at the same time spending $1,000 to buy textbooks and to pay someone to record those textbooks on tape so he could overcome
his disability. His hard work paid off. Of 77 applicants for 8 slots, he had the sixth best score. But despite his hard work and high performance, the city deprived him of a promotion he had clearly earned.

Is this what the President means by ``empathy''--where he says he wants judges to empathize with certain groups but, implicitly, not with others? If so, what if you are not in one of those groups? What if you are Frank Ricci?

 

 

2009-06-23 - Article - Dan Friedman - CongressDaily - GOP Opens Attack On Sotomayor
GOP Opens Attack On Sotomayor
Tuesday, June 23, 2009
By Dan Friedman, CongressDaily

"Senate Republicans today stepped up their criticism of Sonia Sotomayor in a coordinated effort laying out the likely GOP line of questioning at her July 13 confirmation hearing...

Senate Minority Leader Mitch McConnell, R-Ky., offered his first extended comments on Sotomayor by saying criticisms of her for favoring what Republicans label the "empathy standard" and for particular remarks are borne out by her judicial and academic record."
 

 

2009-06-18 - ACS Panel - Judge Sotomayor - Cristina Rodríguez - on empathy - Video - OK
 youtube

An excerpt from a June 10, 2009 discussion on Judge Sotomayor, sponsored by the American Constitution Society, featuring Cristina Rodríguez, Professor of Law, New York University School of Law.


 

2009-06-18 - Senator Sheldon Whitehouse - at ACS - good judgment as empathy - Video - OK
Remarks at the American Constitution Society for Law & Policy National Convention
As prepared for delivery - (a detailed speech)
video
 youtube
text 
June 18, 2009
 

Inevitably, critics have unleashed an avalanche of innuendo, and even falsehoods, meant to weaken the case for Judge Sotomayor's confirmation. Some have walked back from the worst of what's been said - the charge that she is a racist, for example - but troubling undercurrents remain. These suggest that Judge Sotomayor's life experience is somehow unhelpful to the judgment she would bring to the Supreme Court, or that nominees are activists because they have, to quote President Obama, "empathy." This merits a response, because it is harsh, narrow-minded, and ahistoric to contend that a rich life experience and natural empathy are at odds with the wise exercise of judicial discretion that is the longstanding tradition underlying the American system of law.

Central to the American legal tradition is the need for judges, and particularly Supreme Court Justices, with the good judgment to exercise discretion wisely. Right-wing critics of the administration have latched on to President Obama's description of that good judgment as "empathy." Even the ranking member of the Judiciary Committee, Senator Sessions, recently suggested that President Obama's use of the word "empathy" indicates a belief "that a judge should use his or her personal feelings about a particular group or issue to decide a case."

Days earlier, according to the ACS, Senator Sheldon Whitehouse, a Rhode Island Democrat, also took Sotomayor's Republican critics to task, accusing them of a "harsh, narrow-minded" mindset for making empathy -- a quality President Obama said he wanted in

 

ACS Panel Discussion on Judge Sotomayor
 www.youtube.
An excerpt from a June 10, 2009 discussion on Judge Sotomayor, sponsored by the American Constitution Society, featuring M. Edward Whelan III, President, Ethics and Public Policy Center
 

2009-06-17 - Richard Durbin - I want judges with empathy  - get video
Durbin, Richard [D-IL]

Text From the Congressional Record
2009-06-17

(he gives a good example of judges seeing things differently)

So the Senator from Alabama came here and said: We do not need judges with empathy. That word has been stretched in many different directions. But if empathy means we do not need judges who understand the reality of the workplace, if empathy means we would say to Lilly Ledbetter: Sorry, you missed it, girl, you had 6 months to file that lawsuit from the first act of discrimination, the first paycheck--you missed it, and you are out of luck--if empathy would say that is not a fair or just result,

I want judges with empathy. I want them to know the real world. I want them to know the practical impact of the decisions they make. I want them to follow the law. I want them to be fair in its administration. But I do not want them to sit high line colorand mighty in their black robes so far above the real world that they could not see justice if it bit them. I think that is what empathy brings--someone who is at least in touch with this real world.
 

 

American Constitution Society for Law & Policy National Convention
Various lawyers, Scholars, etc talk about eh law and empathy.

Empathetic Judges and the Rule of Law
By Susan A. Bandes, Distinguished Research Professor at DePaul University College of Law
As one pundit put it: "Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution." This criticism confuses empathy with sympathy. It also misunderstands the judge's role. Empathy is the capacity to understand the perspective of another. It is an essential attribute for living in the social world, and a crucial component of legal judgment. Judges need to understand multiple perspectives. What they do with that understanding is a separate question.
Empathy helps illuminate what's at stake for all the litigants, giving judges a fuller picture of the possible consequences of its decision. It doesn't resolve who should prevail in the particular case.

Empathy Is Not Enough
By Christopher L. Eisgruber, Provost & Laurance S. Rockefeller Professor of Public Affairs, Princeton University
"empathy." In a recent press conference, Obama said that a great jurist must be capable "of understanding and identifying with people's hopes and struggles."

Obama has the better of this argument-right up until the last point. Obama is right that hard cases require contestable judgments that go beyond text or precedent. He is right that we should want Supreme Court justices who recognize the need to protect disadvantaged minorities and vulnerable individuals. He is right, too, that a good justice has to understand the hopes and struggles of the litigants on either side of the case. Ultimately, though, empathy is not enough to decide cases or choose justices.

Souter and Empathy
Wednesday, Jul 8, 2009
Liberals like empathy, because compassion brings mercy, and mercy is seen as an important part of good judging. Conservatives denounce empathy, saying compassion breeds judicial activism. Law professor Steven Calabresi has warned that asking judges to be empathetic is like removing the blindfold from the iconic Lady Justice, allowing the judge to decide in favor of whichever perspective elicited more feelings of compassion.
 

Judicial Empathy: A Short Historical Context
By Rebecca Latham Brown, Newton Professor of Constitutional Law, USC Gould School of Law
The senators should be asked to ground some of their sweeping generalities in actual examples of legal judgments that a justice might actually confront. For example, they ridicule or criticize the idea of bringing "empathy" to the job. But what does their criticism mean?
a justice and saw in Sotomayor -- a liability for a nominee.


 

2009-06-16 - Article - Jeff Sessions 'troubled' over Obama court picks
By John Fritze and Joan Biskupic, USA TODAY
Updated 6/16/2009 12:48 PM ET
"I'm troubled, I have to say, by President Obama's philosophy of judging," Sessions, a Senate Judiciary Committee member, told USA TODAY and Gannett Washington Bureau reporters. "When he talks about wanting a judge to show empathy, that's very troubling to me."

"She seems to be willing to accept that a judge's rulings may be influenced by the judge's personal backgrounds or feelings, which is sort of what President Obama has said," Sessions said.

 

2009-06-15 -  Umpire or Empathy - NYU Brennan Center for Justice - Video OK

 A Brennan Center for Justice NYU's Furman Hall debate on the proper qualities and role of a Supreme Court Justice. Featuring

Q & A - Questions:

 

2009-06-16 - Article - Sessions worried about judicial 'empathy'
Sessions worried about judicial 'empathy'
Published: June 16, 2009  upi.com

"I'm troubled, I have to say, by President Obama's philosophy of judging," Sessions said. "When he talks about wanting a judge to show empathy, that's very troubling to me."

Speaking of Sotomayor, Sessions told the newspaper, "She seems to be willing to accept that a judge's rulings may be influenced by the judge's personal backgrounds or feelings, which is sort of what President Obama has said," alleging that three other federal court nominations carry the same taint.
 

 

Judge David Hamilton Nomination
 

2009-06-15 - Article -  Jed Babbin  Question Sotomayor on Hamilton’s Views
http://www.humanevents.com/article.php?id=32284
David Hamilton is another Obama empath. In an answer to a question by Sen. Tom Coburn (R-Okla.), Hamilton wrote, “A judge needs to empathize with all parties in the case -- plaintiff and defendant, crime victim and accused defendant -- so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.

2009-05-14 - Article -  Seventh Circuit Nominee David Hamilton—Written Answers 
 
On the Obama “empathy” standard:  Hamilton tries to reconcile Obama’s standard with the judicial oath of office (28 U.S.C. § 453:  to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and … impartially discharge and perform all the duties” of the office) by stating that a “judge needs to empathize with all parties in the caseplaintiff and defendant, crime victim and accused defendant—so that the judge can better understand how the parties came to be before the court and how legal rules affect those parties and others in similar situations.”  (Response to Coburn #1 (emphasis added).)

11-03-2009 - Article - But Hamilton's comments about "empathy" echo similar comments about personal experience celebrated by conservatives
http://mediamatters.org/research/200911030023
Conservatives have also cited empathy as an important quality in a judge. Undermining The Washington Times' suggestion that Hamilton's "embra[cing] the president's 'empathy standard' " makes him "radical," numerous conservatives have previously cited empathy and personal experience as important qualities in a judge -- including Supreme Court Justice Samuel Alito. Conservatives including Justice Clarence Thomas, President George H.W. Bush, and Bush administration lawyer John Yoo have cited personal experience or empathy as an important quality in a judge.

 


 

2009-06-14 - Article - Diana Schaub - Why empathy is the enemy of justice
By Diana Schaub
baltimoresun
June 14, 2009
We should not forget that this antipathy to empathy enables the courts to be an effective recourse for the lowly and oppressed. Solitary individuals or members of minority groups whose claims are not heard by the more popular branches gain a hearing before the bar, not because judges are empathetic but because judges listen carefully to legal arguments without regard to the persons making them. It is the disregard for persons - ignoring their political strength or weakness - that establishes equality before the law. The mind of the judge, focusing solely on the arguments, may find that the lone individual has a better argument than the big corporation or the majority faction or the government. Empathy corrupts the foundational principle of equality before the law.
 

 

2009-06-12 - Article - Leon F. Seltzer - Sotomayors Empathy: Will It Lead to Emotional Activism,
Sotomayor's Empathy: Will It Lead to Emotional Activism, or Justice with Mercy?
Sotomayor's empathy--could it threaten her performance on the Court?
psychologytoday

Prior to reading about conservatives' opposing Sonia Sotomayor's nomination to the Supreme Court, I'd never heard the term empathy used pejoratively. In fact, as a therapist, I'd always seen empathy as one of the most valuable things I had to offer my clients. For one thing, being able to accurately enter into their world and appreciate their feelings is crucial to establishing rapport. For another, empathy has enabled me to understand something of their essence: who they are, and their very way of being. I honestly don't know how I could be of much therapeutic use to them otherwise--if, that is, I weren't somehow able to grasp the core of their inner experience....

So if we're to honor and respect not just the law but our own humanity as well, we must recognize that we cannot accomplish this without empathy. Absent the capacity--and willingness--to vicariously experience all the ramifications of our decision-making, we'll forfeit our qualifications to defend that which, ultimately, we cherish most about our democracy.


 

2009-06-12 - Article - Robert Koehler - Justice for the Privileged
Syndicated writer, editor at Tribune Media Services
Posted: June 12, 2009 10:19 AM

Take empathy out of the concept of justice and what you have left are rules: simple, mechanical, lifeless.

"Are we really going to insist," Texas Sen. John Cornyn asked the other day, after President Obama talked about closing down the Guantanamo detention facility, "that the jihadist with a suitcase nuke captured in Times Square be read his Miranda rights . . .?" In other words, who needs all this complication -- the luxury of rights and other froo-frah -- when we've got so much evil bearing down on us? Oh, Republicans! They operate on a spectrum that runs all the way from mockery to fear as they pursue their single-minded assault on the new president and the agenda he was elected to implement.


 

2009-06-10 - Fox - Glenn Beck - Remember empathy oh empathy anchor babies - Video - OK
audio and article at laprogressive has link to video
Remember empathy, oh empathy– no one wants to separate that family.
are dates correct for show or article post?
 


 

2009-06-10 - Fox - Glenn Beck - is empathetic fascism that is coming our way - Audio - OK
audio at media matters

The Glenn Beck Program:
Beck claims "[t]his is empathetic fascism that's coming our way"
June 10, 2009
are dates correct for show or article post?

 

 

2009-06-10 - Article - Judge Roy Moore - Judging by law or feelings
Judging by law or feelings?
Posted: June 10, 2009
chairman of the Foundation for Moral Law in Montgomery, Ala

 In July 2007, presidential candidate Barack Obama set forth his criterion for selecting
Supreme Court justices:
“Barack Obama has been busy violating the principles of separation of powers, limited powers, and other constitutional provisions to achieve his radical policies; now he has kept his promise to remake the Supreme Court in his own image. Judge Sotomayor may have the ‘empathy’ to be a legislator, but her unconstitutional views of the judicial role and her favoritism for certain classes of people make her unqualified to be in the judicial branch, much less a judge on the U.S. Supreme Court. It is time for Senators to ask Obama and Sotomayor the tough question—Should judges be oath-bound or empathy-driven?

However, what should really concern us is her "empathy" for those who come before her court – or rather, for certain people and not others. Empathy is defined as the understanding or sensitivity to the "feelings, thoughts and experience of another."

In the postmodern view that prevails today, there seems to be no objective truth or established law. Truth seems to be in the eyes of the beholder. Likewise, the words of the law and the United States Constitution mean only what new "empathetic" judges say they mean.

Obama is clearly seeking to make the judiciary in his own image. Sonia Sotomayor's subjective, postmodern worldview may be exactly what Obama was looking for, but it is not what America needs in a judge, especially on the U.S. Supreme Court. Judging from her "empathy" she may undermine the very concept of equal justice under the law. As in the days of Judge Bracton and even o

 

 

2009-06-07- Article - Lloyd Brown - Empathy and Justice
Empathy and Justice
Lloyd Brown
June 07, 2009

For the sake of charity, let's overlook perspectives on how the world works. Liberals have not a clue how the world works. They passionately believe the unbelievable: that all people secretly long to give up their freedom and sacrifice their own best interests for the good of the collective. Let us focus instead on empathy and the curious idea that the "weak" are always right in litigation, while "strong" equals wrong.  Obama did not explain how he determined who was weak and who was strong but he chose an unfortunate example, to wit: "whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions..."

In balancing rights, do the made-up rights of a strong, healthy adult woman trump those of nature's weakest - an unborn child? Given the liberal proclivities, however, it is safe to assume that to most leftists the "strong" are those with what the rapacious plaintiff's bar calls "the deep pockets."

Under the weak v. strong theory, if a con man walks into a supermarket and pulls the common tactic known as "slip and fall," feigning injury, and then files suit, he is entitled to become a millionaire - because he is weak and the supermarket chain is strong.
..............

Judges take an oath to deliver verdicts impartially, based on the preponderance of the evidence, including legal precedent. When judges don't like the result those factors bring about, and use empathy or any other emotion to achieve a different result, they are breaking that oath and are unfit for office.


f Moses, the issue remains: Should judges rule according to the law or by their own will and feelings?
 

 

2009-06-06 - Fox - Martha McCallon - Sessions - Sotomayor Showdown - Video - OK
Sotomayor Showdown
Tue, 2 Jun 2009
Description: Skirmish over alleged racist statements looms in upcoming Supreme Sotomayor hearings
has video of Limbaugh on Racism

 But we've got a look at some very important things first let's look at what President Obama standard. Criteria for judge I'm not happy with that. He says a judge -- show empathy. To allow their personal feelings to help them decide one way or another -- case should be decided. I think that's directly contrary to the fundamental American rule of law that we've always lived with the neutral umpire so. I think we don't need to take some time -- Make sure that our our nominee when they get on the band you know -- that they need to know they've been appointed but not anointed the not knowing -- set policy for America not anointed to. I'll fix problems that the legislature chose not to fix that's just not the role of the judicial branch."

Rather than to -- that the decision in a fair and objective way I think there is a problem. I think in them many great loss -- today there's a -- out there that President Obama seems to be. In harmony with that suggest that it's the right thing for a judge to allow their feelings there empathy. -- cause them. Help them decide how to rule on the case and I think that's contrary to the great history of American law so that will be one of the big debates and discussions it. -- override this entire process not so much her personally. Don't have any. Knowledge that she is anything other than an ethical and -- person. But I do think -- judicial philosophy and is is ultimately the thing we'll be looking at."
 

 

2009-06-05 - Senator Sessions - GOP Weekly Address attacks empathy - Video - OK

Stories about Sen. Jeff Sessions, R-Ala.  Senator Sessions youtube site

Sessions, speaking Saturday in the Republican Party's weekly radio address, said that President Barack Obama's decision to include whether Supreme Court candidates can put themselves into the shoes of petitioners -- the "empathy standard" -- as a criteria would undermine the "great tradition" of a neutral and independent judiciary, the Washington publication The Hill reported.

"With this view -- that a judge should use his or her personal feelings about a particular group or issues to decide a case -- it stands in stark contrast to the impartiality that we expect in the American courtroom," Sessions said. "If a judge is allowed to let his or her feelings for one party in the case sway his decision, hasn't that judge then demonstrated a bias against the other party?"

Obama said during his presidential campaign that judges should have "the empathy to recognize what it's like to be a young, teenaged mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old," The Hill reported.
 

 

 


 2009-06-04 - Article - Wilmer J. Leon -
 truthout

  What is troubling about the criticism is that most of it is intentionally not directed at Judge Sotomayor's record as a jurist and opinions that she has rendered. Most of the criticism is deliberately based upon select statements made in speeches or lectures that, as was the case with Rev. Jeremiah Wright. They have been contextualized in the most inflammatory way possible in order to scare white people....

Empathy is a quality that contributes to our ability to be human. One's ability to use their own experiences as a basis for understanding the similar experiences of others assists a person in making fair, just and rational decisions. As part of the ruling class and a beneficiary of the ideology of white supremacy in America, it is easy for the Graham's, Limbaugh's and Tancredo's to scoff at a reference to empathy. Those in power, those with the voice, don't need it.

Those who really know the history of the Constitution understand that having been subjected to the injustices of a brutal king, the framers of the Constitution were empathetic to the concerns of those who understood the need to protect the rights of the minority from the tyranny of the majority. That's why the Bill of Rights was added to the Constitution. Empathy versus ideology on the court? Give me empathy.

 

 

2009-06-04 -  Fox - Hannity - Gingrich misleads on empathy - Video - OK
media matters  Article - Gingrich misleads on "empathy"
SUMMARY: On Hannity, Newt Gingrich forwarded the false conservative talking point that President Obama said he would seek a justice who shows "empathy" rather than a commitment to follow the law. But Obama actually said his nominee will do both.

GINGRICH: It's not equal justice. Look, the whole concept that President Obama has talked about -- that he worries about empathy. We don't have the rule of empathy. We have the rule of law. And I think that the nomination of Judge Sotomayor is going to, in fact, create a debate in the Congress.

I noticed that Senator Ben Nelson, Democrat from Nebraska, today raised troubling questions. I think as people see more of what she's written, and as they look at the case you just described from New Haven, they're going to be very troubled by this. I don't think the American people believe --

 

 

2009-06-04 - Article - Empathy at Issue as Senate Committee Approves
‘Empathy’ at Issue as Senate Committee Approves First Obama Judicial Nominees
CQ TODAY  June 4, 2009 – 2:02 p.m.
has audio:
Senator Kyl Emphatically Rejects Obama’s “Empathy” Standard

President Obama’s first two judicial nominees were approved Thursday by the Senate Judiciary Committee, after a debate about the role of “empathy” in judging. That was just a warmup for the confirmation hearings next month for 2nd Circuit Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court. When Obama announced last month that Justice David H. Souter is retiring, he talked of the attributes he would seek in a successor — including “that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Republicans bristled; they tend to see “empathy” as code for judicial activism.

Kyl, the Senate GOP whip, took exception to Obama’s view that empathy is important for a judge. Kyl argued that “the reality is there is always a legal reason to rule” a certain way. “You don’t have to default to what’s in your heart.” At today’s meeting of the Judiciary Committee, CQ — otherwise known as Congressional Quarterly, reported that Senator Jon Kyl, the Republican whip from Arizona, raised the empathy issue. Mr. Kyl, according to CQ, contended that “the reality is there is always a legal reason to rule” a certain way. “You don’t have to default to what’s in your heart.”
 


2009-06-04 - Press conference -  Jon Kyle - No empathy - Audio - OK (need Video)
Senator Kyl Emphatically Rejects Obama’s “Empathy” Standard
Morgen on June 4, 2009
Kyle - attacks empathy in a press conference  have audio of it -

 

2009-06-03 - Fox - Greg-alogue - How empathy is supposed to work.  video
 foxnews
talk
Empathy like Nightclubs - tries to say democrats are redefining empathy to mean exclusion.


 

2009-06-06 - Article - Indiana Gov: Empathy can revive conservatism
06/03/09  link
Washington - Indiana Gov. Mitch Daniels, a potential 2012 presidential candidate, said Wednesday that his fellow Republicans need to work harder to show "empathy" if they want to emerge from the political doldrums. Daniels also called those on the left of the political spectrum "the meanest people in politics."

Conservatives have lampooned President Barack Obama for using "empathy" to describe one of the qualities he seeks in a potential Supreme Court justice. But Daniels said "empathy" is spot on - Obama's just misappropriated the word.

"Empathy is going to get a bad name for a little while because it's been transported into the world of the rule of law," Daniels told a forum for conservatives. "It's what distinguishes us from other species."


2009-06-02 - CNN's - Situation Room - Wolf Blitzer - Jeff Sessions - are you empathetic
- Video - OK
transcript
 I guess the question is, you know, sort of spinning off President Obama's statement that judges should show empathy. He voted against John Roberts and Sam Alito, saying that they didn't rule enough for little people or whatever -- that kind of statement.

So I think we need to make sure that she's committed to faithfully following the law, that she has those legal skills and abilities, give an opportunity for any questions about her character to arise. I've seen none yet.....

SESSIONS: Well, something to that effect, yes. But let me tell you, what is the law to a judge who has an activist bent or a judge that has a -- more a result-oriented bent or a judge who allows their empathy to impact their decision, is --
But let me -- let me phrase the question this way -- are you empathetic, which is a popular word nowadays, are you empathetic to what this woman is about to go through?...

SESSIONS: Politicians are supposed to be empathetic. And, yes, I am, actually. I do feel that it's difficult sometimes for a nominee to be able to explain their views. Sometimes a ruling of a judge or an action of a prosecutor is complex and requires a little time to explain.. And, oftentimes, in this fast paced world, they don't get it.

And I've told her again today, she was going to get a fair chance and a fair hearing.
 

2009-06-02 -Fox -On the Record - Martha Maccallum - Jeff Sessions - empathy  personal feeling neutral umpire - Video - OK
 June 2, 2009
MARTHA MACCALLUM, FOX NEWS GUEST HOST:

. I'm not happy with that. He says a judge should show empathy, to allow their personal feeling to help them decide one way or another how a case should be decided. I think that is directly contrary to the fundamental American rule of law that we have always lived with, the neutral umpire.
I think there is a problem. I think in the many great law schools today, there is a doctrine out there that President Obama seems to be in harmony with that suggests it's the right thing for judges to allow their feelings, their empathy to help them decide how to rule on a case. And I think that is contrary to the great history of American law.


2009-06-02 - Article - Conor Friedersdorf - Empathetic Judges Can Hurt People More Than They Help Them
How Empathetic Judges Can Hurt People More Than They Help Them
by Conor Friedersdorf
06/02/09

John Hasnas makes a devastating case against one kind of judicial empathy:....

But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another’s emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

 

 

2009-06-01 - Fox - The Journal Editorial Report - one word attached to her judicial philosophy it's empathy

 
'The Journal Editorial Report
one word attached to her judicial philosophy, it's " empathy ." That was Barack Obama's word. He wants empathy in judges. Now, it's not just a word, it's a philosophy

HENNINGER: Well, if there's one word attached to her judicial philosophy, it's "empathy." That was Barack Obama's word. He wants empathy in judges.

Now, it's not just a word, it's a philosophy that was in Harvard Law School when Barack Obama was there. It was called critical legal studies, critical race studies. And Sonia Sotomayor subscribes to this way of thinking.

When you talk about ethnicity and gender under this idea, it suggests there are certain disadvantaged peoples and classes in the American population, and a judge should take that into account when making decisions. in other words, your life experience, things you know, what you know about what's fair and what isn't fair, that's entirely different from what people think of the traditional idea of judging, which is looking at the facts, calling it objectively the way the law determines, not in favor of disadvantaged classes of people.

VARNEY: Is that judicial philosophy, is that popular with voters at the moment.


 

2009-06-02 - Article - Timothy Shriver -  Sotomayor and the Empathy Test
June 2, 2009 religion writer
newsweek.washingtonpos

I love the idea that President Obama wants judges who have empathy. What a refreshing litmus test.

Of course, candidates for the bench need to be first-rate legal minds. Of course they need to be capable of working at the highest level of judicial power. But why not judges who have empathy too? Why not judges who understand the people who present themselves in court to have their disputes resolved?

 


 

2009-06-01 - CNN - Fredricka Whitfield - Ruth Marcus  - Video - OK
Sotomayor: Empathy or racism? 
CNN's Fredricka Whitfield speaks with Supreme Court reporter Ruth Marcus about Sotomayor's record.
 June 1, 2009

 


2009-06-01 - MSNBC - David Shuster - Hypocrisy watch - Gingrich   ?????
By: Scott Whitlock
June 01, 2009 21:57 ET
"1600 Pennsylvania Avenue"

The bottom line is that Newt Gingrich and other conservatives praised Sam Alito's nomination but now they are hammering Sonia Sotomayor because she, like Alito, has acknowledged the impact of her background and ethnicity Hey, Newt. When you embrace the empathy of a conservative judge, but call the empathy of a progressive judge racist, that's hypocrisy and it's wrong.


 

2009-06-01 - Article - Steve Clifford  - Empathy  my ass
Empathy, my ass!
By Steve Clifford
June 01, 2009
humorus look

In a speech at Wheeling, West Virginia ,Sen. Jeff Sessions (R-AL) made a sensational charge: “I have here in my hand a list of 205 — a list of names that were made known to the Government as being committed empathizers and who nevertheless are still working and shaping policy in Obama administration.”


 

2009-05-31 - Faces the Nation - Kyle Feinstien Woodward Brooks - Sotomayor Nomination  - Video OK
Jon Kyl Face the Nation on the Sotomayor Nomination
youtube
May 31, 2009.pdf


Sen. Dianne Feinstein
Sen. Jon Kyl
Bob Woodward
David Brooks
HOST: Mr. Bob Schieffer, CBS News

KYL: Bob, I'm sure she will argue that you have to look at the entire context of her speech and all of the
decisions that she has rendered, the opinions that she has written. And I think that that's a fair point.
I'll be meeting with her on Tuesday. We will have hearings where we can question her and ask her what
she means by that. Here is the question that is raised by that statement.

What is her judicial philosophy? How does she decide cases? Is it the historic basis for deciding on the
text, the history, the principles of the Constitution, and the law? Or does she believe that she can apply
her own views, empathy for one party or the other, her idea of how the case ought to come out regardless
of what the law is?

KYL: Well, I think she's going to have to assure the members of the Senate that when she approaches
judging, that she will actually do so on the basis of the oath that she takes.

Let me just read part of that oath to you. It says, "I solemnly swear that I will administer justice without
respect to persons and do equal right to the poor and to the rich." And what that means is that she literally
has to have a blindfold over her when she decides cases, not bring in her empathy for the poor person,
for example. If the law is on the side of the rich person, then she has to rule in favor of the rich person. If
she will do that, then I think she'll have no trouble in her confirmation hearing.

SCHIEFFER: You wrote a very interesting column about this whole thing about "empathy" becoming the
word of the week, as it were. And you said that it does figure in to how judges decide.

BROOKS: It's incoherent to say we don't make decisions without empathy. We're not robots. It's like
saying we're going to have water without hydrogen. It's just part of how we decide things. We have
empathy for this and that and if we didn't have sort of unconscious emotional reactions we could never
make a decision.

And I think the test for her is not if she has empathy, but does -- as the oath says, does she have
empathy for all sides?
And I think this Ricci case, the New Haven firefighters' case, is -- that's going to be
the toughest political case because to me the law is noxious.

Like a guy has dyslexia, studies month after month, hires somebody to read him the stuff so he can learn
it. Passes the test and then he's denied the promotion because the wrong races pass the test. That is
morally offensive to a lot of the people. And I think that is something I wish she had felt a little more
empathy for in that case.

 


2009-05-31- Fox -  Chris Wallace - Specter & Graham - empathy code word for activism
video - foxnews.com
Description: Key Senate Judiciary Committee members on Sotomayor confirmation
" Biases judge sort of Meyer's comments and also about. President Obama was empathy remarks what what happened to the idea that justice. Should be -- not favoring one side over another.

" And legal record in five do that if -- look at her philosophy her."

" Legal philosophy which I think is very activist in nature this empathy word is just a code word for activism. If look at her ideology that's being expressed in some of these cases and that one comment I could never vote for her as a Republican. And now President Obama better hope. That Republicans treat her better than he treated President Bush's --"
 



2009-05-31 -  George Lakoff 
Empathy, Sotomayor, and Democracy: The Conservative Stealth Strategy
truthout

 The Sotomayor nomination has given radical conservatives new life. They have launched an attack that is nominally aimed at Judge Sotomayor. But it is really a coordinated stealth attack - on President Obama's central vision, on progressive thought itself, and on Republicans who might stray from the conservative hard line.

There are several fronts: empathy, feelings, racism, activist judges. Each one has a hidden dimension. And if progressives think conservative attacks are just about Sotomayor, they may wind up helping conservatives regroup.



2009-05-31- ABC - Inside Washington - Peterson -
What about empathy - Video OK
Totenberg  Shields  Krauthammer King etc
http://static.wjla.com/documents/iw-05-31-09.doc

MR. PETERSON: What about empathy? Is it wrong to consider empathy in a Supreme Court nominee?

MS. TOTENBERG: Look, empathy – I think empathy was a stupid word for the president to use. I really do. But on the other hand, President Bush used it when he nominated Clarence Thomas. Presidents want to say I’m appointing somebody who has a compassionate understanding for the people who come before them. But empathy, I think, gave his opponents – it was a gift.

MR. KRAUTHAMMER: But Obama elaborated on that he meant by empathy.

MS. TOTENBERG: He did.

MR. KRAUTHAMMER: Last year he went on and on about it. And he said, it’s understanding what it’s like to be Hispanic, African-American, poor, disadvantaged. When you are a judge issuing a verdict, you are – and the oath she will swear if she ascends to the court, says, I swear to administer justice without respect of persons rich and poor equally. You have to not respect –

MS. TOTENBERG: If you read her opinions, you really have to conclude that she’s not always empathetic to people who deserve some empathy.

MR. PETERSON: Mark.

MR. SHIELDS: Empathy is not the exclusive franchise of any group or any ethnic, religious, or racial group. Thank God that there was an empathetic court under Earl Warren on Brown v. Board of Education – nine white males – as opposed to the Dred Scott decision – nine white males. So empathy does exist.

MS. TOTENBERG: This decision proves something important. Elections have consequences and when you elect a Democratic president, you are not going to get John Roberts. It’s just that simple.

MR. PETERSON: Let me throw a quote at you from “New York Times” columnist David Brooks, Mark’s colleague on Jim Lehrer’s NewsHour; quote: “People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on the death row.” (Laughter.) Charles?

MR. KRAUTHAMMER: Do you mean as a psychiatrist I have to give a ruling on that? Look, there’s a reason that when you go to court, there’s a statue outside of a woman holding scales wearing a blindfold. And the reason why the Supreme Court oath that you take upon swearing in says you aren’t a respecter of persons. The idea is that you show empathy in private life, in charity, in respect. You show it in Congress. That’s why we have progressive taxation and safety nets. I mean, empathy matters in everything except when you are in front of the judge and the judge has to judge about who’s right and who’s wrong and what the law is. If it’s about empathy then the more disadvantaged will win every case.
 

 

2009-05-30 - Fox Friends - Karl Rove - empathy what does it mean - Video OK
Foxnews.com

code for activist judges


 

2009-05-30 - Fox - Journal Editorial Report -  Stuart Varney - Judicial philosophy empathy
video foxnews

Description: How the vice president could be answering for a rocky Sotomayor confirmation
 There's one word has been attached we're judicial philosophy it's empathy that was Barack Obama's where he wants empathy and judges now it's not just the word it's a philosophy that there was in -- Harvard Law School when Barack -- there was call critical legal studies critical race studies. And -- on -- to Myers subscribes to this way of thinking. And when you talk about ethnicity and gender under this idea. It suggests there are certain disadvantaged. Peoples and classes in in in -- American population and a judge should take that into account when making decisions in other words you're life experience -- you know which -- about what's fair and what isn't fair that's entirely different from what people think of the traditional idea judging which is looking at the facts calling it. It objectively the way the law -- not in favor of disadvantage classes of -- people is that that judicial philosophy is that popular with voters at the moment. I don't think it's popular of all I think that philosophy erodes people's trust in the fairness and objectivity of judges so the Republicans could -- points by opposing that judicial philosophy. 

 

 

2009-05-29 - MSNBC - Morning Joe - John Harwood Empathy - Video - - - OK
Video: Panel talks empathy, judges

 

 

2009-05-29 - Article - Charles Krauthammer - Sotomayor: Rebut Then Confirm
By Charles Krauthammer
May 29, 2009
Sotomayor: Rebut, Then Confirm

Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants' background and current circumstances, and for how any judicial decision would affect their lives.

Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice.

Empathy is a vital virtue to be exercised in private life -- through charity, respect and lovingkindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not....

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds -- consistently violated by the Democrats, including Sen. Obama -- that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.


 

2009-05-29 - PBS - Washington Week in Review - Gwen Ifil - Video - OK
Obama Nominates Sotomayor for Supreme Court
President Obama this week tapped Sonia Sotomayor to replace departing justice David Souter on the U.S. Supreme Court. Panelists analyze Sotomayor's background and judicial record and whether identity politics played any role in her selection.

Panelist: Joan Biskupic, USA Today; Peter Baker, The New York Times; James Kitfield, National Journal
Category: Congress, Domestic Affairs, Supreme Court, White House
Date: 05-29-2009



2009-05-29 - Article - The 'Unseen' Deserve Empathy, Too
by John Hasnas
John Hasnas is a senior fellow at the Cato Institute and teaches ethics and law at Georgetown University's McDonough School of Business. He is the author of Trapped: When Acting Ethically is Against the Law.
May 29, 2009
This article appeared in The Wall Street Journal on May 29, 2009

But what about compassion and empathy? Compassion is defined as a feeling of deep sympathy for those stricken by misfortune, accompanied by a strong desire to alleviate the suffering; empathy is the ability to share in another's emotions, thoughts and feelings. Hence, a compassionate judge would tend to base his or her decisions on sympathy for the unfortunate; an empathetic judge on how the people directly affected by the decision would think and feel. What could be wrong with that?

 

 

2009-05-28 -  Article - David Brooks - The Empathy Issue

By DAVID BROOKS
Published: May 28, 2009
nytimes

The American legal system is based on a useful falsehood. It’s based on the falsehood that this is a nation of laws, not men; that in rendering decisions, disembodied, objective judges are able to put aside emotion and unruly passion and issue opinions on the basis of pure reason.

People without emotions cannot make sensible decisions because they don’t know how much anything is worth. People without social emotions like empathy are not objective decision-makers. They are sociopaths who sometimes end up on death row.

Right-leaning thinkers from Edmund Burke to Friedrich Hayek understood that emotion is prone to overshadow reason. They understood that emotion can be a wise guide in some circumstances and a dangerous deceiver in others. It’s not whether judges rely on emotion and empathy, it’s how they educate their sentiments within the discipline of manners and morals, tradition and practice.

 


2009-05-28 - Article - SHERYL GAY STOLBERG - Buzzwords Shape the Debate Over Confirmation
Published: May 28, 2009
nytimes

WASHINGTON - There was a word missing from the glowing introduction President Obama gave for Judge Sonia Sotomayor when he named her as his Supreme Court pick earlier this week: empathy.

Empathy, of course, was all the rage in Washington just a few short weeks ago, when Justice David H. Souter announced his retirement and Mr. Obama, in a surprise appearance in the White House briefing room, set forth his criteria for a replacement by declaring that he viewed "that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient."

Empathy had a nice ring to it, evoking images of compassion, kindness, wisdom, depth. The word stuck. Empathy was in.

But now that conservatives have hijacked empathy and turned it into an epithet - "a code word for an activist judge," as Senator Orrin Hatch, the Utah Republican, said recently on ABC - Mr. Obama seems to have deftly dropped it from his lexicon. Don't look for him to use it again.


 

2009-05-28 -  Article - Katherine Bell - Empathy: Not Such a Soft Skill
Thursday May 28, 2009
by Katherine Bell
blogs.harvardbusiness

Empathy is the word of the moment in the media, as President Obama and the GOP disagree over whether Supreme Court Justices should use it.

In this debate, empathy has come to imply an emotional impulse to root for the underdog.
In his 2001 HBR article, "Leadership in a Combat Zone," Lieutenant General William Pagonis, Director of Logistics during the Gulf War, wrote:

Owning the facts is a prerequisite to leadership. But there are millions of technocrats out there with lots of facts in their quivers and little leadership potential. In many cases, what they are missing is empathy. No one is a leader who can't put himself or herself in the other person's shoes. Empathy and expertise command respect.

Put that way, it doesn't sound quite so soft, does it?

 


2009-05-28 - Article - Karl Rove - Empathy Is Code for Judicial Activism
'Empathy' Is Code for Judicial Activism
by Karl Rove,  MAY 28, 2009

Both President Barack Obama and Republicans get something they want from the Supreme Court nomination of Sonia Sotomayor.

Mr. Obama said he wanted to replace Justice David Souter with someone who had "empathy" and who'd temper the court's decisions with a concern for the downtrodden, the powerless and the voiceless.

"Empathy" is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn't pass the legislative branch or, if it did, would generate voter backlash.

There is a certain irony in a president who routinely praises America's commitment to "the rule of law" but who picks Supreme Court nominees for their readiness to discard the rule of law whenever emotion moves them.



2009-05-28 - Article - Rich Lowry - Sotomayor's view subverts justice in favor of empathy

Rich Lowry: Sotomayor's view subverts justice in favor of empathy
Published: Thursday, May. 28, 2009 - The National Review

Impartiality has been supplanted by empathy. The old-fashioned virtue of objectivity – redolent of dusty law books and the unromantic task of parsing the law and the facts – is giving way to an inherently politicized notion of judging based on feelings. Lady Justice is to slip her blindfold and let her decisions be influenced by her life experiences and personal predilections....

Obama uses "empathy" as a code word for judicial liberalism, and few nominees could be as starkly empathetic as Sotomayor. She has the requisite inspiring background. She has been a reliable liberal vote (never mind that the Supreme Court has been singularly unimpressed by her reasoning in cases that have reached it).

 

2009-05-28 - CNN - Jessica Yellin - weighing empathy scotus  - Video - - - OK
 May 28, 2009
Weighing empathy
Debate rages about the role of empathy in Supreme Court nominations.
CNN's Jessica Yellin reports.
 


2009-05-28 - MSNBC - Rachel Maddow - when you hear the word empathy- Video - OK
'The Rachel Maddow Show 'for Thursday, May 28
Video
msnbc.msn.com/id/31003589

MADDOW: And then there‘s swing number three: President Bush‘s former brain, Karl Rove, wrote in today‘s “Wall Street Journal,” quote, “Mr. Obama said he wanted to replace Justice David Souter with someone who had empathy.  “Empathy” is the latest code word for liberal activism, for treating the Constitution as malleable clay, to be kneaded and molded in whatever form justices want.” “There‘s a certain irony,” he says, “in a president who routinely praises America‘s commitment to the rule of law, but who picks Supreme Court nominees for their readiness to discard the rule of law whenever emotion moves them.” So, when you hear the word “empathy,” think liberal activist lawless, kneading and molding.  Yes, empathy. Also, think Clarence Thomas.

(BEGIN VIDEO CLIP, JULY 1, 1991) GEORGE H.W. BUSH, FMR. U.S. PRESIDENT:  I have followed this man‘s career for some time.  And he has excelled in everything that he has attempted.  He is a delightful and warm and intelligent person has great empathy and a wonderful sense of humor.(END VIDEO CLIP)

MADDOW:  Great empathy?  A man who has great empathy.
So, strike one: she thinks policy is made by courts.  Strike two:  she‘ll let her background influence her decisions.  And strike three: empathy is evil.



2009-05-28 - Fox - Strategy Room - use the word empathy Video - - - OK
Video foxnews.com
Thu, 28 May 2009
Description: 'Strategy Room' panel on pros and cons of Supreme Court nominee Sotomayor Debate

" And you by the way when bush -- and use the word empathy something that now they're attacking Obama for the during his confirmation hearings I can bring. Something different to the court that I can walk to the huge walk in the shoes of people. Four affected by what the court does so there's Clarence Thomas specifically referring to being -- African American that was a diversity statement. That if Clarence Thomas."
(Thomas used empathy -  how do conservatives do with that?))

 Though the empathy Lindsey Graham hill about let's for a Celtics played it when. And I finally getting urgently get them or email -- to your hero by the -- strategy room at Fox News that can't Caroline says. If you right to Warren Michigan in a perfect."



2009-05-28 - article - Is there a conflict between empathy and good judging?
 latimes

How empathy can distort judges' thinking and lead to bad decisions
Ilya Somin says the less empathy, the better.
Judging demands empathy, even from conservatives
Erwin Chemerinsky says all judges exercise empathy, even conservative ones.


2009-05-28 - article - Alan Bean  - Empathy and the Law
friendsofjustice

President Obama’s remarks about judicial empathy have inspired howls of protest from the right and furrowed the brows of legal traditionalists everywhere. ....Empathy shades into bias only when jurists feel the pain of people like them while demonstrating utter disregard for folks on the opposite end of the social spectrum.  The opposite of empathy is ignorance not objectivity.  Who wants to be judged by a woman who has no sense of who you are, how you feel, how you have struggled and what you value?....Empathy generally fits hand-in-glove with the standards of due process.  If you feel the humanity of a defendant you will want that person to get a fair, open and constitutional hearing.  Corners are cut when nobody in the courtroom gives a damn.

 

2009-05-27 - MSNBC - Chris Matthews - Wendy Long - empathy  - Video - OK
Wendy Long spars with Chris Matthews about the role of empathy in the Supreme Court ..
Video and transcripts



Shortly after this exchange, Long responds to Chris Matthews suggestion that the quality of empathy is useful to a jurist, and objects to Matthews characterization of the thought processes that justices employed in reaching a decision in Brown V. Board of Education
Empathy at the end, don't you need empathy besides the law books?


2009-05-27 - Fox - Glen Beck - Thomas Sowell empathy causing very bad decisions - Video - OK

Economic Micromanagement

" You know I  tell -- this this -- empathy thing. If it again as I said at the beginning of the show that's what's leading us to these bailouts everybody says well I don't want people who lose their -- I don't want people -- Well empathy is causing us to make very bad decisions right now yes you you need to be empathetic in your own personal life and we help our neighbors and our friends -- are struggling. In our neighborhoods but. But we don't make bad decisions based on empathy and a I can't believe that this is where the United States government is taking our court system now to two --"

 


2009-05-27 - Article - Thomas Sowell - Empathy On The Bench
Column Of The Day: Thomas Sowell; Empathy On The Bench


May 27, 2009  From Townhall.com

Barack Obama’s repeated claim that a Supreme Court justice should have “empathy” with various groups has raised red flags that we ignore at our peril– and at the peril of our children and grandchildren.

“Empathy” for particular groups can be reconciled with “equal justice under law”– the motto over the entrance to the Supreme Court– only with smooth words. But not in reality. President Obama used those smooth words in introducing Judge Sotomayor but words do not change realities.

Nothing demonstrates the fatal dangers from judicial “empathy” more than Judge Sotomayor’s decision in a 2008 case involving firemen who took an exam for promotion. After the racial mix of those who passed that test turned out to be predominantly white, with only a few blacks and Hispanics, the results were thrown out.



2009-05-27 - Article - Abraham Verghese - Empathy: Good for Doctors and Bad for Judges?
theatlantic
Health / Medicine

The word "empathy" is getting interesting play these days. At times it even sounds like a pejorative. President Obama used the word frequently while campaigning and since being in office. In the context of choosing a Supreme Court nominee, he said that ideally such a person should understand Americans' problems and have empathy for their fellow beings.  But he's also talked about empathy (in Atlanta in Jan 09) in the context of its absence: "We have an empathy deficit when we're still sending our children down corridors of shame--schools in forgotten corners of America where the color of your skin still affects the content of your education . . . when there is Scooter Libby justice for some and Jena justice for others . . . when homeless veterans sleep on the streets . . ."

We can actually measure empathy by something called the Jefferson Scale of Physician Empathy (with 20 items on a Likert scale). In at least one study, female physicians scored higher than their male counterparts (though it did not reach statistical significance), and psychiatrists did better than physicians in surgical fields, while there was no difference among internists, psychiatrists and emergency medicine physicians. An intriguing question is whether each specialty creates a change in degree of empathy, or does one select a specialty based on one's inherent empathy or lack thereof.
 

 

2009-05-27 - Fox - Glenn Beck - calls empathy Sotomayor a racist - Audio - OK
audio at media matters
May 27, 2009
are dates correct for show or article post?


2009-05-27 - Fox - Glenn Beck - our empathy is getting us into trouble  - Video - OK
video foxnews.com

Published: Wed, 27 May 2009 Simple Solutions
Description: Can 'freedom principles' solve America's ills?
" Here's that here's the thing that -- That I think Americans both Republicans Democrats independents all everybody. Most can agree on. What I said -- the very beginning the freedom principle the principle that. We shouldn't be in the car business that's a stupid idea we don't have a place in the car business we have at this seat. But our empathy is getting us into trouble. Because we say will we act I care about the people who have jobs and -- I don't want them to lose their jobs but because of our empathy we go and we start. Violating our number one principle which is. Freedom when you're given a philosophy should we be in the court does have a fax has no government ever succeeded in any business in history just think about it every level of government fails it has a deficit.

 

2009-06-27 - ABC - The View - Ladies discuss Supreme Court ability to separate from emotion  - Video - OK
http://www.theview.tv/video/hot-topics-supreme-emotion 
May 27, 2009
Hot Topics: Supreme Emotion
The ladies discuss the Supreme Court's ability to separate from emotion.
 


2009-05-27 - Article  - Andy Borowitz - Sotomayor Opposed By Powerful Anti-Empathy Lobby
Huffingtonpost
The Supreme Court nomination of Sonia Sotomayor faces new hurdles today, in the form of pressure to block her confirmation from the powerful anti-empathy lobby. H. Walker Ranston, executive director of the American Anti-Empathy League, said that his organization was going to "do a full-court press" to convince Republican senators to vote down Ms. Sotomayor.
(humorous look at the anti empathy campaign of conservatives)


 

2009-05-27 - Article - NPR - Ron Elving - Does Sotomayor Have An Empathy Problem?
 npr.org

"A potentially greater source of vulnerability may be implied by a term that President Obama and others have been using lately. The term is empathy. In the parlance of their party, Democrats use this word to mean sensitivity to the plight of the poor, the disadvantaged and the downtrodden. Why shouldn't a judge, exercising the great power the Constitution has reserved for the judiciary, show compassion for the consequences?

Republicans, for their part, regard empathy as a code word for emotion. They imply that emotion, in the context of jurisprudence, is tantamount to irrationality. Lately, Republicans have made frequent reference to "feelings," as in "the court should apply the law as written, irrespective of the feelings of the individual justices." Getting in touch with one's feelings might be good therapy, the conservatives say, but it's a lousy way to decide big cases.

Empathy also implies a sharing -- whether of values or circumstances or experience. It may be obvious to some that any such identification constitutes a conflict of interest for a judge, especially a Supreme Court justice. But if the presence of such connections implies partiality, what does the absence of such connections imply?"
The lobbyist said that his group's 50,000 members were "deeply disappointed" by the choice of the empathic Sotomayor, explaining, "We were really hoping for a sociopath."
 


2009-05-27 - MSNBC - Today - Schumer Sessions - law and empathy- Video - OK
http://www.swamppolitics.com/news/politics/blog/2009/05/sotomayor_law_vs_empathy.html.
Session assert empathies


 

2009-05-27 - MSNBC - Ed Show - Psycho talk Empathy  - Video - OK
Ed Show Psycho Talk : The GOP and Judge Sotomayor Empathy Is Bad Video
Video
youtube
has many clips with dates. a good reference.


 

2009-05-27 - Fox - Wendy Long - Lashes Out at Sotomayor - Video - OK
Sotomayor Critic Wendy Long Lashes Out at Sotomayor
(Empathy is bias, impartiality, point of view. Put someone in someone else's shoes.)


 

 

2009-05-27  - The Empathetic Umpire
http://www.citizenlink.org/videofeatures/A000010114.cfm  
Stuart Shepard compares how the president and the chief justice of the Supreme Court differ on how to make a call.

 



 

 

2009-05-26 - Fox Friends - Beck and roundtable - was Solomon empathetic - Video - OK
video at media matters
Beck on empathetic SCOTUS justice: "Was Solomon empathetic when he said cut the baby in half?"
May 26, 2009
are dates correct for show or article post?

2009-05-26 - Fox - Glenn Beck - Hispanic chick lady You are empathetic - audio - OK

audio - http://mediamatters.org/mmtv/200905260041
are dates correct for show or article post?
Beck on Sotomayor nomination: "Hey, Hispanic chick lady! You're empathetic ... you're in!"

 

2009-05-26 -  Fox - Glenn Beck - Hitler empathy leads you to very bad decisions - Video - OK

audio - mediamatters.org 
empathy leads you to very bad decisions many times
Roe versus Wade using empathy?
Impact of Empathy on Outcome of Supreme Court Cases
are dates correct for show or article post?

 



2009-05-26 - Fox - Glenn Beck - Clips Should New Supreme Court Pick have Empathy in Rulings
- Video - OK
has a couple of guests


 

2009-05-26 - MSNBC - Rachel Maddow - Dahlia Lithwick - going after her on the empathy thing - Video - OK
The Rachel Maddow Show for Friday

May 29, 2009
Read the transcript to the Friday show
 youtube Video
video at .msnbc.msn
more Maddow transcripts
Most recent Maddow empathy”article results

 

MADDOW:  Sensing an opportunity to rally their troops, conservatives wasted no time pouncing on Sonia Sotomayor today.  Activist judge, be afraid, oh, no empathy.

The always credible Karl Rove called her an unabashed liberal.  So, is she a liberal, abashed or otherwise?  Dahlia Lithwick from Slate.com will join us next with actual legal analysis of what counts as the left these days in D.C. and in the judiciary.

But first, One More Thing about Sonia Sotomayor.  There is one troubling entry on her otherwise very impressive , especially for fans of the Boston Red Sox, the New York Mets, or almost any other Major League Baseball team...

So, I think you‘re quite right.  They are going after her on the empathy thing and on the great life story thing.  Funny, Clarence Thomas has a great life story counted as a plus for him.  But for Sotomayor, it somehow suggests she‘s unhinged.

MADDOW:  Well, what is your assessment specifically of that empathy criticism?  I mean, conservatives are saying that Obama is looking for a justice, and in Sotomayor, he has found a justice who will substitute her feelings for the law.  And I have to wonder, if that‘s just kind of obvious, you know, anti-woman politics or if that‘s crazy Supreme Court partisan politics jargon that has a totally different meaning than we would understand those words to mean in the real world?

LITHWICK:  Well, two things, Rachel.  The first is—so much of this is anti-woman politics.  I mean, so much of this has larded up with talk of her being a bully and aggressive—the kind of things that she does on the bench that Scalia can get away with, but she can‘t.  But I think your second point is really key, which really is that this is—this is kind of empathy being massively distorted by the right to mean bias.

When Obama talked about empathy in “The Audacity of Hope,” he was very, very clear.  He didn‘t want judges to make stuff up so that the poor guy wins.  What he said is, put yourself in the other person‘s shoes, right?  That was his mom‘s credo.

When he talks about empathy, I think all he‘s saying is, just listen.  Listen to what the other side is saying.  See if there is merit to their argument.  And then think it through.

It‘s a process question for him—empathy, it‘s not results-oriented.  And I think that‘s massively upended, to mean and what you‘re hearing today is, “Oh, she is results-oriented.  Oh, she cares is giving the little guy a fair shake.  She loathes white men.”

That‘s not what Obama meant when he talked about empathy, it certainly not something that‘s reflected anywhere in a hundreds of cases if you look at her record, that this is a person who upends the rule of law to give the little guy an extra leg up.

BOXER:  And you.

MADDOW: Sensing an opportunity to rally their troops, conservatives wasted no time pouncing on Sonia Sotomayor today.  Activist judge, be afraid, oh, no empathy.

The always credible Karl Rove called her an unabashed liberal.  So, is she a liberal, abashed or otherwise?  Dahlia Lithwick from Slate.com will join us next with actual legal analysis of what counts as the left these days in D.C. and in the judiciary.

But first, One More Thing about Sonia Sotomayor.  There is one troubling entry on her otherwise very impressive , especially for fans of the Boston Red Sox, the New York Mets, or almost any other Major League Baseball team.

 

 

 

2009-05-26 - donkeyliciousI think it bodes well that Obama has explicitly set out empathy as a desired trait in Supreme Court justices. Given the importance of empathy, it's good to set it up as part of a big liberal vision of what judges should do. Right-wingers claim that their judges just interpret what's there in the Constitution and/or that they aren't judicial activists. These two claims are regularly in conflict -- consider Lochner-era jurisprudence, in which the court struck down lots of economic legislation designed to help workers, because it was taken to violate the Constitutional rights of individuals.


 

2009-05-26 - President Obama Nominates Sotomayor - Video - OK
President Obama Nominates Sotomayor
 (download and add to Obama speeches)

 


2009-05-26- Speech - Obama Announces Sonia Sotomayor as Supreme Court Nominee

President Obama Announces Sonia Sotomayor as Supreme Court Nominee
Tuesday, May 26, 2009;
Barack Obama

These two qualities are essential, I believe, for anyone who would sit on our nation's highest court. And yet these qualities alone are insufficient. We need something more. For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience; experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.
 

 

2009-05-26 - FOX - Glenn Beck - Should New Supreme Court have Empathy  - Video - OK
Glenn Beck Clips 05-26-09 Should New Supreme 8 Court Pick h
 


2009-05-26 - Compilation MSNBC Fox - Matthews etc - Breaking news Sotomayor announcement
- Video - OK
a compilation of Sotomayor Media reaction


 

2009-05-26 - Article -  Politico ignores history of conservatives' citing importance of empathy in a judge
Politico ignores history of conservatives' citing importance of empathy in a judge
May 26, 2009 -  mediamatters.org

SUMMARY: The Politico reported attacks from conservatives that Sonia Sotomayor, in the words of Wendy Long, "applies her feelings ... when deciding cases." However, the Article did not note that numerous Republicans have previously praised compassion as a judicial attribute.

JUDGE THOMAS: Senator, being nominated to the Supreme Court of the United States is one of the highest callings in our country. It is an opportunity, it is an entrustment, an entrusting of responsibility by the people of this country, by this body to make some of the most difficult and important decisions in our country. It is an opportunity to serve, to give back and that's been something that has been important to me. And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I."...

Indeed, then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing his selection of Thomas to serve on the Supreme Court.

Further, several former Republican senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), have previously cited compassion as a qualification for judicial confirmation.


 

2009-05-26 - Article - Dan Froomkin - Obama's Real-Life Justice
Obama's Real-Life Justice
Dan Froomkin
May 26, 2009 - washingtonpost.com

(has many links and references)
In nominating U.S. Appeals Court Judge Sonia Sotomayor to the Supreme Court, President Obama is asserting his view that real justice is arrived at not through cold-hearted calculations made in a vacuum, but by applying the principles of the founding fathers to the real world.

Obama had already declared that the quality of empathy -- "of understanding and identifying with people's hopes and struggles," as he put it on May 1 -- would be a key litmus test for the nomination. (See my extensive May 13 post, The Empathy War.)


 

2009-05-26 - Article - Kathleen Reeves - Sotomayor, Obama, and Empathy
Sotomayor, Obama, and Empathy
Kathleen Reeves, RH Reality Check
May 26, 2009 - 2:43pm
 

At the heart of the fight over her nomination will be a debate over the role that a judge’s experience should play in rendering decisions. Although Mr. Obama said on Tuesday that “a judge’s job is to interpret, not make law,” his emphasis on a nominee with “empathy” has generated criticism from Republicans, who saw that as code for legislating personal views from the bench.

Judge Sotomayor has said that “our experiences as women and people of color affect our decisions.” In a lecture in 2001 on the role her background played in her jurisprudence, she said, “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.”

Opponents of the “Empathy Doctrine” argue that judges should not be agents of social change; that they should do as little as possible; or that everything we need to know is already in the Constitution. But the belief behind Obama’s philosophy is that no matter how constructionist or originalist or formalist a judge claims to be, he or she necessarily involves his or her specific, biased judgment. Judges, in other words, are human. Moreover, our legal system was created by decades of humans with decades of biases. This is what Wendy Long misses in her stunningly oblivious condemnation of Sotomayor as

“a liberal activist of the first order who thinks...that one’s sex, race and ethnicity ought to affect the decisions one renders from the bench.”

 

2009-05-26 - Article - Paul Gorrell - Sotomayor Derided by Conservatives For Empathy
Paul Gorrell
May 26, 2009
Religiondispatches.org

It seems odd to debate whether it’s a good thing for a person to possess empathy; yet that has become the core issue leading up to President Obama’s nomination of Judge Sonia Sotomayor to the Supreme Court.

Interestingly, debating empathy has exposed the root ideology of fundamentalism, whether it’s found in “strict constructionist” interpretations of the law or in religious contexts. It has also exposed the underlying misogyny within the conservative position.

Rules-Based Personalities, Fundamentalism, and Empathy

Several different types of psychological assessments claim to measure the empathy of an individual. Some include psychometric scoring of self-reported information related to values, motives, and behaviors, while others measure observed behaviors. In most validation studies on empathy (such as a recent study here of medical military personnel) women do tend to score higher on empathy than their male counterparts. Based on these findings, women have greater potential for effectively interpreting the experience of those they interact with.
 

2009-05-26 - MSNBC - Chris Matthews - Turley on temperament & empathy  - Video - OK
Turley on  temperament and empathy
video at: 
http://mediamatters.org/mmtv/200905260030.
May 26, 2009 
are dates correct for show or article post?



2009-05-26 - Fox - Happening Now - Jeff Sessions - empathy is not a traditional   - Video - OK
'History of Activism'
Video.foxnews - History of Activism'
Published: Tue, 26 May 2009
Description: Sen. Sessions on what questions Sotomayor will face from Senate Judiciary Committee
He didn't. They. -- and I think we'll give the kids to respond but you know these are pretty big question the president is that he. Lost the nominate someone to. Uses if the state to decide based isn't. Really empathy is not a traditional. I felt -- now I'm not sure what it is but it's certainly not lost certainly not judicial. And but we'll have to inquire into those things but speed as I told the president we're gonna give her fair and respectful hearing these -- he's in."

 

 

2009-05-26 - Fox - Krauthammer - empathy overturning idea of MLK - Video - OK

'Race Discrimination'
E
mpathy is the overturning of the idea of MLK 
http://mediamatters.org/mmtv/200905260023
Krauthammer: "empathy" is "the overturning of the idea of" MLK "of justice being about the content of a character"
- Empathy is the Opposite of Justice
conservatives stand on principles
May 26, 2009 11:22 am ET
are dates correct for show or article post?


2009-05-26 - Fox Friends - Krauthammer - Sotomayor Identity Politics & Empathetic Justice - Video - OK
Video  foxnews  Race Discrimination
'Race Discrimination'

Krauthammer: Sotomayor Pick About "Identity Politics" And Empathy
Charles Krauthammer says opposition to Sotomayor pick will hinge on Connecticut firefighters decision
Identity Politics
That's one thing -- job on the court is to be an impartial adjudicated. And if she is not if her empathy. And -- of concern for certain ethnicities overrides. The idea of justice and equal justice I think that is a troubling concern."

 There's another word that Americans are gonna hear a lot about that's empathy because the president mention that word when. He goes to evaluate who he would nominate for the US Supreme Court. Now -- if if you're sitting on that that senate panel the Senate judicial panel that that we'll take upper case eventually we believe. What's the first question. How do you define empathy how does that apply to the way interpret law which your first question."




2009-05-26 - Fox -  Strategy Room - bring her empathy in watching - Video - OK
Video Foxnews 
President's Pick
Published: Tue, 26 May 2009
Description: 'Strategy Room' panel on Obama's Supreme Court nomination

President's Pick
multiple lots of discussions with empathy
Album personal life in some ground you know -- beginning -- plus from the national life into effect about schools and United States certainly. And those experiences combined will essentially -- her she did not use use the word empathy but essentially bring her empathy in watching. Supreme Court justices over the years have you not heard. Such such an announcement it's like us."



2009-05-26 - Fox - Greta Van Susteren - Ken Starr - he wants justice with empathy
- Video - OK
video foxnews.com - Trouble Ahead?
Why Ken Starr believes Obama's Supreme Court nominee could face an uphill battle
Trouble Ahead?

 He used the term. Empathy that he wants to justice with empathy. Is that something in that and in how do you interpret that remark by him and a sense an important quality -- for a -- justice.
Well it's an important quality for judges sitting in family court the -- but. My word -- Tony about the interpretation of the constitution United States. We -- someone who has an attitude of harshness. But on the other hand we don't want to have someone whose attitude is that plaintiff always wins for the defendant should always lose. So even handed this fairness impartiality those are the injuring characteristics and qualities -- when it comes to interpreting that document

 

2009-05-26 - Fox - Tim O'Brian - judge with empathy with a heart - Video - OK
video foxnews.com - Supreme Court Pick
Supreme Court Pick
Description: What does Sonia Sotomayor's nomination tell us about Obama's plans to govern?
He has said he would like to have a judge with empathy with a heart. And I'm sure that judge sort of my hours going to be question about that do you have a heart could do you have empathy with a down and out the outsider the powerless. And if she says yes -- the big question is how does that affect your decision room -- he's got a heart she says no I think ahead of big headlines. There's a little or no question is the whole worded and it can -- rule put their heart they have to go to the constitution that's. And nobody disagrees that some of the most liberal justices. And sell the most liberal senators on the Judiciary Committee Chuck Schumer has set. They still have to apply the constitution. They can't say I'm my feelings are with you and therefore you're gonna win and if that's what she's saying. I don't think should be concerned how to help us understand what this whole and goofy comment is all about him. Well. We do have. What seems to be an ivory tower for Supreme Court justices.

 

2009-05- 29  - Thane Rosenbaum - The Empathy Seat on the Supreme Court
One wouldn't think that such otherwise innocuous words as "empathy" and "life experience" would have the power to unsettle an institution as solid as the legal system, but with the nomination of Judge Sonia Sotomayor to the Supreme Court, President Obama has apparently done just that.

....Actually, one wonders whether empathy and compassion can even survive the law school experience. So much of the law is dedicated to narrowing issues, limiting the scope of stories, and valuing facts over actual truths.


 

2009-05-26 - Stanley Fish - Empathy and the Law
nytimes.com

President Obama wants Supreme Court justices who have empathy. What could be wrong with that, asks Dahlia Lithwick (“Once More, Without Feeling,” Slate.com): “When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering?”.....

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

And so it goes in an endless round of claims, counterclaims, accusations and dire predictions. My own prediction is that we will hear it all again once Obama announces his nominee and the drama of the confirmation hearings begins. Must-see T.V.


 

2009-05-23 - MSNBC - Lester - Mike Viqueira  - Video - OK
obama-seeking-justice-with-empathy
 


 

2009-05-21 -  Article -  Ellen Goodman  -Empathy might be just what we need in a Supreme Court justice
 mercurynews.com/opinion
By Ellen Goodman
Posted: 05/21/2009

Who knew he was waving a red flag before the red-staters? Now, a phalanx of horrified conservatives has trotted out, insisting that empathy is just a code word for the sentimental liberal bias in favor of underdogs over the Constitution. ..

The ever-combative Karl Rove dismissed empathy as the secret handshake connoting liberal activism. John Yoo, the man who justified torture for the Bush administration, sneered at

the idea of a "Great Empathizer." Wendy Long of the Judicial Confirmation Network insisted that "Mr. Obama's gold standard is the very opposite of impartiality." It would usher in justices who decided the law by their mere "feelings."

You might say that they had an overly emotional response about emotion. Indeed, you might describe the passionate assault as an advance strike on any expected female nominee. Lady Justice notwithstanding, tradition sees the law as hard, rational and male, while empathy is soft, emotional, female and generally weepy.

But let us remember that empathy is not sympathy. It doesn't require that we take sides. Nor is it an emotional shortcut that upends all legal reasoning to declare a winner.

Empathy is rather the ability to imaginatively enter into the experience of others. As Harvard law professor Carol Steiker says, "We think of this as central to moral reasoning of any kind." How else to understand such moral basics as the Golden Rule?

The capacity to recognize another person's reality is not just liberal. The conservative jurist Richard Posner has described empathy as an important instrument in a judge's tool kit. It doesn't trump reason, it informs reason.

Finally, as this debate goes on, it's worth asking what exactly would a judge without empathy look like? Bandes offers a name straight out of "Star Trek": "Spock."

 

2009-05-20 - Press Secretary Robert Gibbs - Ledbetter decision showed a lack of empathy  - Video - OK
May 20, 2009 transcript
youtube

Q    Two questions.  On the Supreme Court, you've talked about the Ledbetter decision being an example of the lack of real-world understanding.  What's the opposite of that?  What would be something -- what would be a symbol the President would be looking for, for somebody demonstrating that real-world understanding?

MR. GIBBS:  I don't -- I'm not following the theory.

Q    If the Ledbetter decision showed a lack of empathy or real world understanding -- and that was something that you said in your earlier briefings, an example of why he was calling for those particular characteristics -- what would be a positive example --

MR. GIBBS:  I'd say the four people that ruled on the other side of the Ledbetter case.  (Laughter.)

Q    What's the common -- I mean, he's looking for somebody to demonstrate that understanding.  What's a symbol of that understanding, what is he looking for?

 

2009-05-20 - Andy Cobbon - Judge Not humor  - Video - OK
Jesus selected as Judge.
good idea for empathy - Jesus supports empathy but conservatives don't want it.



2009-05-20 - Article - Susan A. Bandes - Empathetic Judges and the Rule of Law
By Susan A. Bandes,
May 20 2009
Distinguished Research Professor at DePaul University College of Law
and Author of The Passions of Law

As one pundit put it: "Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."

This criticism confuses empathy with sympathy. It also misunderstands the judge's role. Empathy is the capacity to understand the perspective of another. It is an essential attribute for living in the social world, and a crucial component of legal judgment. Judges need to understand multiple perspectives. What they do with that understanding is a separate question.

 

 

2009-05-18 - Article - Aaron Wiener - Liberals Forced to Play Defense on Language Battle
Supreme Court Nominee Debate Defined by Conservatives *****
Liberals Forced to Play Defense on Language Battle
By Aaron Wiener 5/18/09

.... Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.

Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”....


....Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative organization that promotes “the confirmation of highly qualified individuals to the Supreme Court of the United States,” believes that judicial empathy and adherence to the text of the Constitution are incompatible.

....Marx says that the confirmation debate will have “three huge implications”: it will educate the American people about the issues, help them understand Obama’s true political philosophy and set the stage for the 2010 U.S. Senate campaigns.


 

2009-05-17 - NBC - Meet the Press - Tim Kaine - Michael Steele Empathy - Video - OK
 Meet the Press  Tim Kaine, Michael Steele  - Empathy
Video  - Transcript
May 17, 2009
Tim Kaine, Michael Steele , Richard Haass, Jon Meacham, Peggy Noonan, Ron Brownstein
http://www.msnbc.msn.com/id/30755466/
video
http://www.msnbc.msn.com/id/21134540/vp/30792677#30792677

Tim Kaine, Michael Steele

MR. GREGORY: And the president has talked about wanting a nominee who is empathetic, somebody who knows what it's like to be poor, to be African-American, to be gay. Chairman Steele, you were on the radio recently and you took a shot on that priority for the president. This is what you said.
MR. STEELE: Mm-hmm.
MR. GREGORY: "I don't need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic." Sounds like--you, you also say to the NRA on Friday, "Sounds like the president's been watching `Dr. Phil' too much, that's who he wants on the Supreme Court."

MR. STEELE: Yeah. I don't--look, I need a judge who's going to take the Constitution, apply the facts, apply the law and come to a reasoned, sound judgment. I don't need a judge to look at an African-American standing before him and go off on some, you know, liberal tangent about, "Oh, gee, I wonder what his life was like as a child." I'm concerned about getting fair adjudication and jurisprudence under the law. And, and the reality of it is this: This is an opportunity for the president to, to break this cycle that we've been in, this back and forth between Democrats and Republicans when it comes to judicial nominations. The Constitution must stand for something, it must mean something, and I think this is the appropriate time for this president to show that it has value and importance other than being empathetic.
MR. GREGORY: Chairman Kaine, Jeff Sessions, Senator Sessions, who's the ranking member on the Judiciary Committee, says you got to get a judge on there instead of, say, a politician who's going to think that they can start interpreting the law and making law. What do you say?
GOV. KAINE: Well, let me wrap it in with the empathy comment. You know, I, I think this is a fundamental philosophical difference between the parties, David. And, you know, I would say to Chairman Steele, you know, the party of no shouldn't now become the party of no empathy. What the president said was, "I want somebody who has the empathy to be able to understand when, when he is--when he or she is writing an opinion, how is it going to play out in the lives of people sitting in their kitchens trying to work on the economy?"

------------
MR. GREGORY: Chairman Kaine, Jeff Sessions, Senator Sessions, who's the ranking member on the Judiciary Committee, says you got to get a judge on there instead of, say, a politician who's going to think that they can start interpreting the law and making law. What do you say?
GOV. KAINE: Well, let me wrap it in with the empathy comment. You know, I, I think this is a fundamental philosophical difference between the parties, David. And, you know, I would say to Chairman Steele, you know, the party of no shouldn't now become the party of no empathy. What the president said was, "I want somebody who has the empathy to be able to understand when, when he is--when he or she is writing an opinion, how is it going to play out in the lives of people sitting in their kitchens trying to work on the economy?"
MR. STEELE: But that's not the role...
GOV. KAINE: "How is it going to play out in state legislators who have to follow what the court writes, or in a court that has to interpret it?" Empathy is the ability to understand how an opinion written in an closed chamber actually gets played out in real people's lives. That's what this president wants.
MR. STEELE: I'm sorry. I, I am sorry.
GOV. KAINE: And I'm surprised at the other guys would have a problem with that.
MR. STEELE: You know, the, the party of no is no to judges that are going to sit there and try to come up with some feel-good legislation, effectively, to feel sorry for me, a judge is there to look at he facts and apply the law and come up with the appropriate resolution. through their opinion. That's not the role of a judge. A judge is not there He's--I don't have time for the judge to feel good or bad about an issue.
GOV. KAINE: But that's not what the president ever said. He's, he's not...
MR. STEELE: He said he's empathetic. Go look up the definition.
GOV. KAINE: Right. I, I, I have. And...
MR. STEELE: The definition is empathetic is, like, concerned about one's feelings.
MR. GREGORY: All right.
MR. STEELE: I don't a judge to be concerned about my feelings.
GOV. KAINE: Well, if you guys are against empathy, just stand on that platform.
MR. STEELE: I'm not--it's not--look, it's not about...
GOV. KAINE: Empathy is something we think's a great value.
MR. STEELE: Come on, Chairman, you know it's not about being against empathy, it's about applying the rule of law and having jurisprudence that you can trust, not a judge who may have a bad day or be overly sensitive to my condition.
MR. GREGORY: Let me move away from the issue of social issues and let's talk about national security and where it divides these two parties. House Speaker Nancy Pelosi is in some hot water this week. She's taken on the CIA, saying she was never actually briefed about the use of interrogation techniques like waterboarding. She accuses them of misleading the Congress. They have pushed back saying that wasn't the case. Why does this matter, Chairman Kaine, in the overall debate over "torture"?
GOV. KAINE: You know, David, great question, because I think the real issue is thank goodness we have a president and a Congress who are stating clearly torture is no longer an instrument of foreign policy of this nation. That's what really matters, that we've turned the page, we've said that torture is not an instrument of foreign policy. So what was...
MR. GREGORY: But Democrats don't want to turn page, Chairman.
GOV. KAINE: Well...
MR. GREGORY: They want accountability for Bush administration figures. And there are those on the right who say wait a minute...
GOV. KAINE: Well.

 

 

2009-05-17 - CBS - Face the Nation - Panel Notion of Empathy  - Video - OK
May 17, 2009
CBS news Video
transripts
GUESTS: REP. PETER KING  R-New York
ANTHONY ROMERO Executive Director, ACLU
JOHN DICKERSON  CBS News Political Consultant
JOAN BISKUPIC  USA Today
HOST: Harry Smith, CBS News
 

JOHN DICKERSON: One of those voices is the President’s arguably and that’s why we hear about
Governor Granholm in Michigan, governor Napolitano-- former governor Napolitano now at the
Department of Homeland Security, and Elena Kagan, is the solicitor-general, all of them outside of the--
and also the President talks about this notion of empathy which he has gotten beaten up on the right
because they think it is sort of like a group hug, it’s a kind of softheaded thing
.

HARRY SMITH: But isn’t that kind of shorthand for activist judge who will use the court as a legislative.

JOHN DICKERSON: That’s the way the right sees it for sure. But the way I think the President sees it I
think we can look at what he has done himself as president. Look at this issue of the photos of the
detainees. His instinct is let things out. He believes in sunshine and he also believes that the abuse is
morally wrong. However, he empathized with the view of the military leaders and decided I am going to
overrule my instinct.
I think that is the way he thinks of empathy--is putting yourself in the shoes of other
people so you can understand where they are coming from. That is the way he would define it, anyway.

 


 

 

2009-05-15 - CBS - Washington Unplugged - Schieffer - Jeff Sessions - troubling word - Video - OK
 cbsnews
Epsiode: May 15

Schieffer - someone with empathy? republicans say that's activists. Did the at word bother you?

Sessions - What is empathy , a troubling word, empathy standard
....
Schieffer asked the Republican if he was bothered by President Obama's use of the word "empathy" in describing his ideal candidate. Critics have argued that by saying he wants someone with empathy the president is implying that his nominee will push an agenda.

Sessions said Obama's word choice was "troubling,” adding: “What does empathy mean? You like one party or another party that is appearing before you and you are going to doctor your opinion to favor the one that you like?"

 

2009-05-15 -  Article - Slate - Lithwick  - not just liberals who play the empathy card
Crimes of Compassion
It's not just liberals who play the empathy card.
By Doug Kendall and Dahlia Lithwick Posted Friday, May 15, 2009

We have heard a great deal this week from the right about the stomach-churning evils of empathy. How it's a call to "emotive," lawless, unhinged judicial conduct that turns the federal bench into a cross between Oprah's studio and a lunatic asylum. The quality of empathy—which President Obama has said is a priority in a Supreme Court pick—has been derided, mocked, scorned, and brought into close contact with Michael Steele's behind. Which makes it rather problematic when you consider that conservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.

 

 


2009-05-13 - Article - Dan Froomkin - The Empathy War

The Empathy War  *****
White House Watch,  By Dan Froomkin
(good Article with good overview.)

It's kind of ironic that empathy may turn out to be one of the most contentious topics in modern American politics. But empathy is at the very core of President Obama's political philosophy. And -- as seen in the response to his announcement that he considers empathy an essential attribute for a Supreme Court pick -- there's something about the word that seems to drive his critics on the right crazy.

On its face, it's hard to imagine why anyone would be threatened by empathy, either in general, or in particular as a desirable quality in a Supreme Court justice. Empathy, after all, is just about understanding others' feelings.

One glorious thing about this country is that there isn't (or at least shouldn't be) any conflict between having empathy and fervently adhering to the Constitution and the egalitarian vision of the founders.

Are Republican critics of Obama's empathy litmus test saying that one can't be empathetic and conservative at the same time? That self-centeredness is a GOP prerequisite? Hardly. They say Obama is simply using empathy as a "code word" for "activist judges" who will side against the wealthy, the strong and corporate interests even if the law suggests otherwise. (See my May 4 item. Also see Stephen Colbert's hilarious riff on trying to crack Obama's code.) .....


 

2009-05-13 - NPR - Alberto Gonzales 0n empathy - Audio - OK
AUDIO-- Alberto Gonzales: "‘Empathy’ Means A Judge Saying 'I Don’t Care What The Law Says'"
Appearing on NPR’s Tell Me More yesterday, Gonzales claimed that he is “worried” that judges with empathy would make “decisions based on what they think makes them feel good” [...]

MICHEL MARTIN: I wanted to again cite the president’s words when he said, “I view the quality of empathy of understanding and identifying with people’s hopes and struggles as an essential quality for arriving at just decisions and outcomes.” I wanted to ask you, Attorney General Gonzales, do you think that, do you agree with that? Do think that’s appropriate?

GONZALES: Well, I think everyone wants to think that their government officials are kind, compassionate people. And I think someone having that kind of image is certainly helpful in a confirmation hearing. I do worry a little bit, well, I worry, I worry about about justices on the court making decisions based on what they think makes them feel good. I don’t think it’s fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good. In essence what you’re saying, I think, is that I’m going to, I don’t care what the law says, I’m going to come out, I’m going to pursue an outcome that I think is fair and just. I’m going to rewrite the law. And I think that’s dangerous and so, again, I agree that we want our justices to be compassionate, to be kind people, but I think their job as a member of the court, quite frankly, is to apply the law and I think the notion that we worry about the outcome. You know, I served as a justice on the Supreme Court of Texas and sometimes I reached decisons and I didn’t like the outcome, but I felt that I had a duty to my oath of office to respect the words of the statute that I was interpreting.

 

 

2009-05-12 - Article - Robert Burton - A judge without empathy is inhuman
A judge without empathy is inhuman
The anti-Obama rallying cry that a Supreme Court justice must rule by reason alone is ignorant of how our minds and bodies work.
By Robert Burton
May 12, 2009

It's astounding that a trait normally considered admirable -- one usually sought out in choosing personal relationships, colleagues and associates -- is now seen as synonymous with being emotional and partisan, as though being empathetic makes one less rational and reasonable. It's understandable, given the deplorable nature of partisan politics, that conservative critics would come up with a unified denouncement of whomever Obama chooses. But why settle on an argument that flies in the very face of modern cognitive science and the understanding of how our brains function?

At the heart of the misunderstanding are erroneous assumptions that stripping empathy from decision-making will necessarily improve the quality of the decision, and that one has the ability to consciously control his or her feelings of empathy.

linked to


2009-05-11 - Article - McConnell at Brandeis No empathetic court pick
McConnell: No 'empathetic' court pick
By ALEX ISENSTADT | 5/11/09 12:58 PM EDT 

date of commencement?  May 9, 2009

(find Video of McConnell at Brandeis)
Delivering a commencement address to the graduating class at the Brandeis School of Law at the University of Louisville, McConnell all but warned Obama that any prospective justice who put “empathy” before interpreting law as written would meet a headwind of GOP resistance.

“During the campaign, then-Senator Obama said his criteria for picking a judge were not legal brilliance or a judicious temperament, but ‘empathy’—empathy, that is, for particular parties or groups over others. And the president emphasized that point again last week. This idea of ‘empathy’ sounds appealing at first. After all, judges—especially those on the Supreme Court—hold a lot of power. And they ought to take care to use their power wisely,” 


“But you can see the problem with this view if you ever find yourself in front of a court and you’re not arguing for the party or group for whom the judge is empathetic. Suppose you happen to have, objectively, a very good case under the law. What fairness can you expect if the judge was appointed based on the ability to ‘empathize’ with the opposing party?”
 


2009-05-11 - Article - Dahlia Lithwick - GOP's misguided and confused campaign against judicial empathy.  ***
Once More, Without Feeling
 The GOP's misguided and confused campaign against judicial empathy.
By Dahlia Lithwick
Slate.com

One is surely entitled to say that President Obama's repeated claim that he seeks "empathy" in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose.

Sen. Orrin Hatch of Utah, speaking on This Week, X warned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics."

In an opinion piece in the Washington Times X warning that Obama is poised to be the "first president to make lawlessness an explicit standard for Supreme Court Justices,"

Wendy Long of the Judicial Confirmation Network saw empathy as a kind of temporary insanity that so distorts a jurist's vision as to make it difficult "to uphold the federal judicial oath to dispense justice impartially."

Over on Fox News, Sean Hannity X warned that empathy is the first step toward "social engineering."

 And in a delicious Freudian slip, Sen. Jeff Sessions of Alabama snorted:X "I don't know what empathy means."

John Yoo also seems to be of the view that the kind of emotional incontinence that begins with empathy for others quickly leads to being "emotive" on the bench. Evidently it's a short hop from empathy to having the judicial vapors.

 

2009-05-11 - Article - A Case for Empathy
THIS WEEK IN RACE
5/11/2009
(has some links)
In a matter of minutes, and in the days that have passed since, those who expect to be disappointed by Obama's eventual selection have argued that "empathy" is a code word for "judicial activism" or "legislating from the bench." Maybe so.

Among the alarmists were the folks at Freedom Works, who had this to say: "What Obama is saying here is that the rule of law should be secondary in judicial reasoning to a judge’s own personal feelings. It is nothing short of a recipe for a breakdown of our legal system, and the death of an expectation by participants in court proceedings that they will be treated fairly, particularly if they are not highly sympathetic."

Of Obama's statement, Sean Hannity said that Democrats “want the courts to take over and engage in social engineering," and Washington Times columnist Amanda Carpenter told CNN's Howard Kurtz that "[e]mpathy [is] an emotive term [and that] Barack Obama is calling for a judge who will take their [sic] emotions into account when making a judicial decision."

 

 

2009-05-10 - Article blogs - CNN - Obama's search for empathy
download this Video> klein on empathy? http://podcasts.cnn.net/cnn/big/podcasts/lateedition/Video/2009/05/10/sotu.5.10.cnn.m4v
Reliable Sources: Obama's search for 'empathy'
May 10, 2009 Posted: 01:14 PM ET
From CNN Associate Producer Natalie Apsell

Washington Times columnist Amanda Carpenter explained conservatives’ concern about the “empathy” issue on Reliable Sources with Howard Kurtz Sunday morning. Several conservatives on cable, radio and in print argued that “empathy” is a code word for “liberal.” On Fox News, Sean Hannity said that Democrats “want the courts to take over and engage in social engineering.”

"Empathy, it's an emotive term. I mean, Barack Obama is calling for a judge who will take their emotions into account when making a judicial decision," Carpenter told Howard Kurtz.

"This is hilarious," TIME Magazine’s Joe Klein said in response. "This is 'Exhibit A' of what I was just talking about. The Republicans, when they hit the word 'empathy,' are being hateful and ugly."


2009-05-10 - Article - John Yoo - Obama needs a neutral justice
Obama needs a neutral justice

By John Yoo
Sun, May. 10, 2009, Inquirer Columnist

Obama promises something different. In 2007, candidate Obama declared that his judges would "recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African American or gay or disabled or old." When he announced Souter's retirement, the president stated he would nominate "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." Empathy is "an essential ingredient for arriving at just decisions and outcomes."

Empathy has a proper place in other areas of life, such as medicine or charitable work. And the law does take account of a party's identity when necessary - in deciding whether someone has suffered racial or gender discrimination, for example. But judges should not apply these rules differently in individual cases because of the skin color, or sex, or religion of the plaintiff or defendant.

A justice who followed candidate Obama's views would come from a very different list from one who went beyond cases and footnotes to reach for a higher state of empathy. Yet the judicial mold created by the candidate would be more beneficial to the president, whose ambitious economic and political program argues for a justice with a more modest, neutral vision of his role.

 "Obama's call for emotive judges contradicts his moderate campaign positions."
"Obama could make a pick based solely on race or sex - though it's not clear why the most empathetic judges are minorities or women - to please parts of his coalition." 

"If Obama shoots for empathy ... he will give Senate Republicans yet another opportunity to rally around a unifying issue where they better represent the majority of Americans."

 

2009-05-10 - MSNBC - Chris Matthews - empathy business - Video - OK
Matthews claims that by citing "empathy," Obama is not looking for "a great constitutional scholar or a jurist"; Mitchell disagrees
empathy business.  who also has empathy
May 10, 2009 11:53 am ET
are dates correct for show or article post?
video http://mediamatters.org/mmtv/200905100002

 


2009-05-09 - Article -
Susan Nielsen - The e-word: Supreme Court and empathy
The e-word: Supreme Court and empathy
by Susan Nielsen
Saturday May 09, 2009, Oregonlive.com

To liberals, empathy is secret code for "not a right-wing jerk."

To conservatives, empathy is secret code for "soft-headed liberal social worker."

"What (Obama) means is he wants empathy for one side," one of Justice Clarence Thomas' former clerks recently told The Washington Post, while she was making the media rounds for the conservative Judicial Confirmation Network.

"A judge is supposed to have empathy for no one," she added, "but simply to follow the law."

Believe it or not, this debate about whether empathy is a good or bad quality will define the entire nomination process.



 

2009-05-08 - Article - What Is This ‘Empathy’ Word, And Why Does It Make Barack Obama Hitler
What Is This ‘Empathy’ Word, And Why Does It Make Barack Obama Hitler?
calls Obama Hitler. No author. 
May 8, 2009 - wonkette.com
Links to
‘Empathy’ vs. Law [National Review]
Sessions Says He’s Looking For Judicial Restraint [National Journal]
 

 

2009-05-08 - Bill Bennett show - Michael Steele - Empathy Behind. - audio - OK
Michael Steele - Chairman Republic Party - GOP Chair
http://www.youtube.com/watch?v=dt8VcZYQ3F0 

Good morning y’all, we’re back in the house. We’re talking a little bit of Constitution and a little bit Supreme Court. And a whole lot of saving America’s judicial system and saving our rights as citizens and not having empathetic judges decide cases, but rather judges who are actually understanding the rule of law and what the Constitution and those laws are all about. And how to apply the facts to the law and the law to the facts. And adjudicate my case. I don’t need some judge sitting up there feeling bad for my opponent because of their life circumstances or their condition. And short changing me and my opportunity to get fair treatment under the law. Crazy nonsense empathetic. I’ll give you empathy. Empathize right on your behind. Craziness.


 

2009-05-07 - Article - Karl Rove - Republicans and Obama's Court Nominees
Republicans and Obama's Court Nominees
Senators can use the hearings to talk about judicial restraint.
By KARL ROVE  MAY 7, 2009

In the coming debate, Republicans should explain their view of the judiciary's proper role and why Mr. Obama's desire that a nominee have "empathy" and "understanding" (fine qualities) is an amorphous basis on which to pick a justice. Should the "empathy standard" apply to the unborn? How about gun owners? What about religious conservatives who believe the court has removed religious influences from American life?

What Mr. Obama wants in a nominee isn't really "empathy" and "understanding." He wants a liberal, activist Supreme Court justice. But as Justice Antonin Scalia has said, "It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is."

Senate Republicans may not be able to stop Mr. Obama's nominee, but they can explain to the public the party's reasons for opposing judges who think of themselves as legislators with life tenure. GOP senators appear to be comfortable making this argument, believing that the country favors judges who strictly apply the law. They're right.

This confirmation battle will remind people that elections have consequences, few of which are as important or lasting as a Supreme Court nomination.



2009-05-07 - Article - Sessions Says He's Looking For Judicial Restraint
Sessions Says He's Looking For Judicial Restraint
Nationaljournal.com
Thursday, May 7, 2009

 

When you hear President Obama talk about nominating someone to the court who has empathy and real-world experience, do you understand what he means?

Sessions: I don't know what he means. And it's dangerous, because I don't know what empathy means. So I'm one judge and I have empathy for you and not this party, and so I'm going to rule for the one I have empathy with? So what if the guy doesn't like your haircut, or for some reason doesn't like you, is he now free to rule one way or the other based on likes, predilections, politics, personal values?

The core strength of American law is that a judge puts on that robe and he says, "I am unbiased; I'm going to call the balls and strikes based on where the pitch is placed, not on whose side I'm on. I don't take sides in the game."... Now, President Obama said some other things that are classical independence of the judiciary, and that they should follow the Constitution. So I guess we'll know more when we see the nominee.



2009-05-07 -
Fox - Durbin Goodstein - Media falsely claim  video compilation  - Video - OK
video compilation
Dick Durbin
Richard Goodstein
Media figures and outlets have falsely suggested that President Obama said that he will seek a replacement for Justice David Souter who demonstrates the quality of "empathy" rather than a commitment to follow the law. In fact, in that statement Obama said that his nominee will demonstrate both.
(overview article, list of references)
2009-05-07 - Media falsely claim Obama ****
good Article with lot's of good links. ****  reread
Video of Fox attack on empathy. Empathy and understanding.
Media falsely claim Obama said he doesn't want a justice committed to following the law
May 07, 2009 6:32 pm ET

 

SUMMARY: Media figures and outlets have falsely suggested that President Obama said that he will seek a replacement for Justice David Souter who demonstrates the quality of "empathy" rather than a commitment to follow the law. In fact, in that statement Obama said that his nominee will demonstrate both.

Following President Obama's May 1 statement in which he discussed the qualifications he will use to select a Supreme Court nominee to replace retiring Supreme Court Justice David Souter, media figures and outlets have falsely suggested that Obama said that he will seek a replacement for Souter who demonstrates the quality of "empathy" rather than a commitment to follow the law. In fact, in that statement Obama said that his nominee will demonstrate both. Other media have stated or advanced the claim that, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But two recent studies of Supreme Court justices indicate that by their measure, those most frequently labeled "conservative" were also among the most activist. Moreover, several former Republican senators have previously cited "compassion" as a qualification for judicial nominees.

 

2009-05-07 - Fox - Radio - Orin Hatch - empathy words like that far left groups - Audio - OK
audio - foxnews 
Sen. Hatch on Obama's SCOTUS nominee!
Speaking in Code?
Published: Thu, 7 May 2009
Description: Sen. Hatch on Obama's SCOTUS nominee!
Well didn't comment and I wasn't surprising is that it is very personable or -- articulate charismatic. Like from a lot. Let you know how some of his language that it uses when he talked about judges or during the campaign where they wouldn't do. Kind of worried -- quite a bit because it was talking about you know. -- words like that far left groups. One activist judges choose some. You know things like that he that you were that empathy towards certain groups they wanted to.

 

2009-05-07 - Article - Chris Weigant - Media Misinterpreting Obama's Empathy Dog Whistle
Chris Weigant
Author, Political Commentator, and Blogger
May 7, 2009
Is The Media Misinterpreting Obama's "Empathy" Dog Whistle?
Leading off this attack on Obama's "empathy" is Republican Senator Orrin Hatch, from a media appearance last Sunday:

The Washington Times, that bastion of conservative opinionating, took this anti-empathy position and ran with it (parental warning: this Article may frighten small children). "[Obama] will become the first president in American history to make lawlessness an explicit standard for Supreme Court justices," is one of the milder things it has to say.

Because, in the end, most people would probably agree with everything Obama said in his statement. Empathy just doesn't have the power to terrify average folks.

 

 


2009-05-06 - Senate - Ted Poe -
 empathy or a social or political agenda  - Video - OK

Poe, Ted [R-TX]
2009-05-06
Text From the Congressional Record

Mr POE of Texas. Mr. Speaker, the President has made it clear that his pick for Justice of the Supreme Court will be different than all others who have previously served. He has said that the new Justice ``will have empathy and understanding for people,'' ``that the person realizes justice isn't about some abstract law theory,'' but how decisions ``will affect the daily reality of people's lives.''

He has also seemed to indicate he wants someone that isn't so indoctrinated with constitutional thought or beholding to the technicalities of the Declaration of Independence.

The new President has said he wants a Justice with the ``heart to recognize what it's like to be a young teenager mom, empathy to understand what it's like to be poor or a minority, gay or disabled or old.''

Then he also said this week, ``The quality of empathy of understanding and identifying with people's hopes and struggles is an essential ingredient for arriving at just doctrines and outcomes.''

Sounds like, to me, a good career move for Dr. Phil or someone like him that deals only with emotions.

...and why is this comment about outcome so important? Does the President think the new Justice should reach certain social activist decisions by any means necessary, regardless of the law and the evidence? Seems like the President wants a Justice that will treat people differently, depending on who they are, rather than treat them all equally.
I thought judges were to make judgments based on facts and the law; at least that's what I thought and did for 22 years as a judge in Texas. Judges are not to make decisions based on their own personal, social or political agenda for the masses....

Also, does the President only want a politically correct judge or Justice that correctly judges the Constitution? It appears to me that the new Justice should be qualified as a constitutional scholar that believes in upholding the sanctity of the words of the Constitution, rather than someone that just has empathy or a social or political agenda they want impose on the whole Nation.


 

2009-05-06  - Article - Ruth Marcus - Behind Justice's Blindfold
Behind Justice's Blindfold
By Ruth Marcus
May 6, 2009

This is red-alert talk for conservatives. "Those are all code words for an activist judge who is going to . . . be partisan on the bench," Utah Republican Sen. Orrin Hatch warned on ABC's "This Week."

ven before the election, Northwestern University law professor Steven Calabresi, a co-founder of the Federalist Society, was already at Defcon 4. In a Wall Street Journal op-ed, X he argued that Obama's "emphasis on empathy in essence requires the appointment of judges committed in advance to violating" the judicial oath to do equal justice to rich and poor. "To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most." ....

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter's pay discrimination lawsuit X because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

Justice's blindfold is a useful metaphor for impartiality. It's not a fixed prescription for insensitivity, or for obliviousness to the real world swirling outside the arid confines of the courthouse.

2009-05-07 - Article - Eric Alterman, Danielle Ivory - Think Again: Codeword "Empathy"
americanprogress.org
Mere mortals like you and I might have found this statement completely innocuous, perhaps even overly vague. Thank goodness, then, for the likes of Senator Orrin Hatch (R-UT) and his decoder ring. Hatch informed George Stephanopoulos that, by “empathy,” Obama clearly meant “activist judge.”

 

 

2009-05-05 - Fox - Lindsey Graham - Has empathy - Video - OK
video  foxnews 
Senator Lindsey Graham
Senator Lindsey Graham
Published: Mon, 4 May 2009
Description: Member of Senate Judiciary Committee discusses what Specter's switch means for the GOP
" Do you think he will I mean -- you know and a lot of his picks so far many people feel that he's been more liberal woman he was as a candidate and we think he'll seize this opportunity to pick somebody who as he is set in the past is. Has empathy and you know Paul qualities like that where you and I don't want."
 

 

2009-05-04 - Article - Wendy Long - Obama's explicit standard of lawlessness for justice picks
Opening of a sorry chapter
Obama's explicit standard of lawlessness for justice picks
By Wendy E. Long | Monday, May 4, 2009
Commentary

In his arrogance, Mr. Obama has overlooked the fact that he was not elected based upon his criteria for Supreme Court justices. He listened to the coos of those at New York and San Francisco cocktail parties who laughed with him at the folks who "cling to their guns and their religion." (Mr. Obama's judges obviously won't have much empathy for these people - even though their rights are guaranteed explicitly in the Constitution.)...

Mr. Obama's nominee will carry with her to the Senate a presumption that she will, as her nominating president has said, have "empathy" for certain favored liberal causes and parties - making it difficult, as Republican Leader Mitch McConnell has said, to uphold the federal judicial oath to dispense justice impartially. Mr. Obama's gold standard is the very opposite of impartiality....


2009-05-05 - Fox - Hannity - Panel Empathy  - Video - OK
Supreme Court Appointment Up For Sale Or Repayment of Favors
he major criteria for appointment is "empathy" not "legal interpretation" of the Constitution. First, on the list is Sonia Sotomayo


 

2009-05-05 - Article - Thomas Sowell - Empathy vs Law
Empathy’ vs. Law
: When you buy words, you had better know what you are buying.
Thomas Sowell

National Review,
That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much farther the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the Left and set it in legal concrete, immune from the democratic process.

May 5, 2009
'Empathy' Versus Law: Part II - Thomas Sowell
The great Supreme Court justice Oliver Wendell Holmes is not the kind of justice who would have been appointed under President Barack Obama's criterion of "empathy" for certain groups. Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and for those for whom he had antipathy. As Holmes himself put it: "I loathed most of the things in favor of which I decided."
 

 

2009-05-04 - ColbertNation - Code Word Empathy  - Video - OK
http://www.colbertnation.com/the-colbert-report-videos/226695/may-04-2009/code-word-empathy
Monday, May 4, 2009
Code Word Empathy
Clearly, Obama plans to appoint a drug-addled evolutionist with swine flu to the Supreme Court. (03:22)


2009-05-04 - Daily Show - Justice Is Bland - Justice Stick  - Video - OK
2009-05-04 - Daily Show - Justice Is Bland - Republicans Hating Empathy  - Video - OK
Justice Is Bland: "Daily Show" Mocks Souter For Stepping Down, Republicans For Hating Empathy (VIDEO)
 

 

2009-05-04 - Article - Fox's Garrett deceptively cropped Obama remark on judicial role
link to fox Video

May 03, 2009 4:21 pm ET
SUMMARY: Fox News' Major Garrett deceptively cropped a remark by President Obama that Garrett said "aggravates those who believe justices should follow the Constitution and legislative intent," omitting Obama's statement that he would seek a Supreme Court nominee who "honors our constitutional traditions" and "respects ... the appropriate limits of the judicial role."



2009-05-04 -
Fox - Tim O'Brian -
empathy what does that mean you - Video - OK
 foxnews.com -
Justice Pick
Justice Pick
Justice Pick
4 May 2009
A look at President Obama's Supreme Court shortlist

" If he's saying that -- you want to pick people who would take sides is also said that. The judge has to be a person of empathy what does that mean you -- that's a code word for an activist judge."

 

2009-05-04 - Article - Josh Gerstein - Obama's search for 'empathy' shapes Supreme Court replacement debate
Obama's search for 'empathy' shapes Supreme Court replacement debate
By
5/4/09 . politico.com

When President Barack Obama said last week that he’d be looking for “empathy” in his Supreme Court nominee, he gave both liberals and conservatives a launching point for their Sunday-show debates.

“What does that mean? Usually that’s a code word for an activist judge,” Sen. Orrin Hatch (R-Utah) said on ABC’s “This Week.” He said a judge needs to “be fair to the rich, the poor, the weak, the strong, the sick [and] the disabled.”

“I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that’s a concern,” former Republican Party Chairman Ed Gillespie said on NBC’s “Meet the Press.”

“What I hear in President Obama’s statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion,” Sen. Dick Durbin (D-Ill.) said on “Fox News Sunday.”  ....more.

 

 

2009-05-04 - Article - Dan Froomkin - Obama  Empathy Litmus Test
Obama's Empathy Litmus Test
White House Watch,  By Dan Froomkin
May 4, 2009, Washingtonpost.com

Who knew such an innocent-sounding word could get people so riled up? But conservatives are finding much to hate in President Obama's assertion on Friday that he considers "empathy" a prerequisite for a Supreme Court justice.

In a surprise appearance in the middle of a White House press briefing on Friday, Obama confirmed that Justice David Souter is stepping down and talked a bit about what he's looking for in a replacement: "I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes."

Josh Gerstein writes for Politico that "empathy" became a central topic on the Sunday talk shows: "'What does that mean? Usually that's a code word for an activist judge,' Sen. Orrin Hatch (R-Utah) said on ABC's 'This Week.' He said a judge needs to 'be fair to the rich, the poor, the weak, the strong, the sick [and] the disabled.....more.

 

2009-05-04 - Ed Schultz Show - Sen Ben Cardin Empathy Comments - Video - OK
Ed Schultz Show
Transcript
Video
"May 4: MSNBC’s Ed Schultz and Sen. Ben Cardin, D-Md., discuss why the GOP is claiming that President Barack Obama’s use of empathy as a criterion in looking for a new Supreme Court Justice as a bad thing."

Tonight, Republicans already using code words for the Supreme Court nomination.  Since when is empathy a bad thing?

The Senate Judiciary Committee‘s Ben Cardin joins us. ....

SEN. BEN CARDIN (D), MARYLAND:  Well, I think we want a person on the court that‘s going to have a passion for the protections in our Constitution.  If you want to call that liberal, cal lit liberal.  I call it common sense and traditionalist. 

I want a justice who‘s going to follow the precedence of the court, follow the rule of law, have empathy for what is happening out in the community.  To me, that‘s a traditional justice that I want, and I think that‘s who the president should appoint.  ...

SCHULTZ:  And Senator Cardin, how big of a fight do you think this is going to be?  Because Orrin Hatch has already come out and made the comment that the word “empathy” is code for activist.  How do you take that?

CARDIN:  Oh, not at all.  Not at all.

I think it‘s clear that for a person and a justice who has empathy, we want that person to follow the rule of law, to follow judicial precedent.  There‘s plenty of room in there. 

But look, we don‘t have openings in the Supreme Court often.  I expect that the Senate will want to make sure the confirmation process is thorough.  I hope at the end of the day, each one of us will vote for what we think is right, and I am confident that if the president does the type of vetting that I think he will do, that we‘ll have a nominee we can support. 

 

 

2009-05-04 - MSNBC - Chris Matthews - Hatch v Sheldon  - Video - OK
Transcripts

Judges who care?  Barack Obama doesn‘t want some pencil-neck on the Supreme Court.  He wants a red-blooded person who understands how the law affects people.  He wants empathy, darn it!  He wants a Justice who can understand and appreciate the struggles and challenges of the little guy.

Sounds good.  The problem is, some on the right fear that what he‘s really talking about is adding to the Supreme Court some judge who wants to help the little guy by making up the law.  We‘ve got two senators on the Judiciary Committee with us tonight, ....

MATTHEWS:  What do you make, Senator Hatch—I want to stay with you for a minute—of the word “empathy”?  Apparently, that‘s become something of a lightning rod.  The president said something about picking somebody with empathy.  That could mean someone who knows what the world‘s all about.  It could mean something else.  What do you take it to mean?

HATCH:  Well, the president called me today, and he made it very clear that, you know, he wants people who are not out of the mainstream.  He wants people who are not radical, who are not extreme.  And he said he‘s going to make a pragmatic choice and he feels he‘ll pick somebody who‘s pragmatic.

But if you start talking about empathy—do you allow your empathy to change the law so that it meets with your empathetic feelings, or does that mean that you at least have some sort of a feeling about what really moves the world and makes the world go within the rule of law, the framework of the rule of law?  If it‘s that, fine.

But the president also has said that he‘s going to pick somebody who might use their own political preferences, feelings, or other approaches.  And you know, these are kind of the words that bother those of us who think that the judiciary should be limited to what it should do.  There are limitations on what a judge can do.  They‘re appointed for life.  They are not elected to go and make laws.  And when they start making laws, rather than interpreting laws, that‘s when I think they have a rough time with me.

MATTHEWS:  Let‘s take a look at what the president said, and then we‘ll go to Senator Whitehouse.  Here‘s President Obama on Friday using that word, “empathy.”

(BEGIN Video CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES:  I view that quality of empathy, of understanding and identifying what people‘s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. ...

Is it wrong to look at empathy?  Should you look at the law or the history of the law only in the Constitution, or should you look at its impact?

SEN. SHELDON WHITEHOUSE (R-RI), JUDICIARY COMMITTEE:  I think it‘s important to look at empathy.  I think the president is onto something very important.  And I have great respect for Senator Hatch.  He‘s a very distinguished former chairman of the Judiciary Committee.  But I think it‘s premature at this point to leap to the conclusion that empathy requires overturning the rule of law.  The rule of law is a vital prerequisite for this judge, but within that rule of law, there is abundant room for human characteristics like empathy to help define the way decisions are made and the way decisions are framed.....

MATTHEWS:  Are you concerned, Senator Hatch, that some Justice could come along and in a big broad decision, lead the Court to believe that implicit in our founding documents, including the right to the pursuit of happiness in the Declaration, that you should have same-sex marriage, that that would be part of an empathetic decision, feeling for those same-sex couples and their predicament?
 

 

2003-05-03 -  Fox - Panel Plus -  justice should have some empathy  - Video - OK
Panel Plus
video - foxnews
'FOX News Sunday' panel continues discussion on who Obama should choose for Justice Souter's replacement after the show
Video|05/03/2009|More from Politics
|empathyfound at0:25, 0:33, 1:12
multiple emapthy discussion

“…a country awfully good aside. I thought about this the standard of empathy and understand. …”
“…says that -- Supreme Court justice should have some empathy . I want suggestion is here oh no you should simply be a…”
“…some sometimes with other things but the idea that empathy can be at governing principle for any type of consists of…”
“…Empathy for her 5% since that 95%. Is looking at the law and applies the law act appropriately what you see what the…”
“…pragmatic guy that's what I he wasn't trying to say. Empathy for anything particularly when he was just trying to say…”
“…you think build and empathy and understanding is code for something. I yeah I think it five suggests the try to pick.…”

 


2003-05-03 -  Fox - Chris Wallace - Durbin Ensign - empathy and understanding - Video - OK
Sens. Durbin, Ensign on 'FNS'
video foxnews - Sens. Durbin, Ensign on 'FNS'
Published: Sun, 3 May 2009
Description: Key senators analyze impact of Specter's political defection

" Let me ask you with a follow up on that senator Durbin that the president. Talks about wanting somebody -- empathy and understanding his words whatever happened to just applying the law.  Well look what happens with Lilly Ledbetter. This led to a change in law because the Supreme Court under its new leadership decided to interpret the law in the way and have never been interpreted. And as a result a woman who had been discriminated against in the workplace for more than ten years was denied any recourse in court. That was a reversal of previous analysis of the law. I think what I hear in president Obama's statement is that he wants the justices of the court. The trying to understand the real world we live and the impact of some of these decisions apply the law but doing in the sensible question senator Bentsen."

 

 

2003-05-03 - This Week Stephanopoulos -  Leahy & Hatch Empathy - Video - OK
This Week with George Stephanopoulos

     

HATCH: Well, it's a matter of great concern. If he's saying that he wants to pick people who will take sides -- he's also said that a judge has to be a person of empathy. What does that mean? Usually that's a code word for an activist judge.

But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.

STEPHANOPOULOS: Chairman Leahy, let me bring you in on this, because what Senator Hatch is saying there I've heard from a lot of other conservatives, this fear that the president's focus on empathy is a code for bringing a judicial activist to the court. ....

LEAHY: I've known President Obama long enough. He doesn't need to use code words. He speaks very plainly and very directly. I think that's why he won such a resounding victory in November.

Utah Sen. Orrin Hatch,  a senior Republican on the Judiciary Committee, said he hopes Obama will choose someone of "great dimension." At the same time, he said that Obama's criteria raise concern and he contended that the president says he will select a nominee according to that person's politics, feelings and preferences.

"Those are all code words for an activist judge, who is going to, you know, be partisan on the bench," Hatch said.

"We all know he's going to pick a more liberal justice. Their side will make sure that it's a pro-abortion justice. I don't think anybody has any illusions about that," he said. "The question is, are they qualified? Are they going to be people who will be fair to the rich, the poor, the weak, the strong, the sick, the disabled."

 

 

2009-05-03 - NBC - Meet The Press - Arlen Specter - Empathy - Video - OK
http://www.msnbc.msn.com  
http://www.msnbc.msn.com/id/30566640/
video
http://www.msnbc.msn.com/id/21134540/vp/30546596#30546596

May 3: Sen. Arlen Specter, D-Pa., discusses the speculation surrounding President Obama’s Supreme Court.

MR. GREGORY:  All right.  The president said the other day, and he said this repeatedly, that he wants an empathetic justice on the Supreme Court. Empathetic.  Is that code to you for an activist judge?

SEN. SPECTER:  Well, we look to the court to interpret the Constitution and the statutes passed by Congress and not to make laws.  There is no doubt that the standards and values in our country have shifted, as Cardozo said in the Palko case years ago.  There was a time when equal protection meant that the Senate galleries were segregated, and we know how foolish that would be in modern day life.  So there's no doubt that there are changes with the times. But if you talk about empathy, you may be talking about something which is, which is broader.  But we'll have to test the nominee on that.  Listen, the job of the United States Senate is to ask firm, really tough questions to find out whether the nominee has an open mind, whether the nominee respects the supremacy of the Constitution, whether the nominee will look to Congress to establish public policy.  And there are going to be some empathetic factors, but basically we're a nation with a rule of law.
---------------
Empathetic. Is that code to you for an activist judge?

SEN. SPECTER: Well, we look to the court to interpret the Constitution and the statutes passed by Congress and not to make laws. There is no doubt that the standards and values in our country have shifted, as Cardozo said in the Palko case years ago. There was a time when equal protection meant that the Senate galleries were segregated, and we know how foolish that would be in modern day life. So there's no doubt that there are changes with the times. But if you talk about empathy, you may be talking about something which is, which is broader. But we'll have to test the nominee on that. Listen, the job of the United States Senate is to ask firm, really tough questions to find out whether the nominee has an open mind, whether the nominee respects the supremacy of the Constitution, whether the nominee will look to Congress to establish public policy. And there are going to be some empathetic factors, but basically we're a nation with a rule of law.


MR. GREGORY: You're a Democrat now, and so I ask you whether, in light of that switch, do you regret your support in the past for some of the more conservative members of this court: Alito, Roberts, Clarence Thomas?

SEN. SPECTER: I do, I do not. Remember, I was a leading voice opposite--opposing Judge Bork, a Republican. Got a lot of brickbats for that. Not a month passes by today without my hearing about Judge Bork. He was a leading Republican candidate. So I've not hesitated to oppose Republicans, a Republican when I thought he was out of the mainstream of American jurisprudence.

MR. GREGORY: All right, let me ask you about this switch from the Republican to the Democratic Party. Back in April of this year on MSNBC's "Morning Joe" you said this: "So I'm trying to bring back those voters to the Republican Party. We need balance and I'm trying to get people to register Republican. We need a second party. Look here, our country is built on checks and balances. The only check and balance in America today are the 41 Republican Senators who can talk and filibuster, otherwise, the White House, the House of Representatives will be a steamroller." Well, Senator, you've now decided to join that steamroller. What changed?


SEN. SPECTER: Well, well, since that time I undertook a very thorough survey of Republicans in Pennsylvania with polling and a lot of personal contacts, and it became apparent to me that my chances to be elected on the Republican ticket were, were bleak. And I'm simply not going to subject my 29-year record in the United States Senate to that Republican primary electorate. I'm not going to do that.

Now, with respect to the steamroller, I have shown repeatedly my independence, willing to cross party lines when I thought the interests of the American people in Pennsylvania were required it. Take one example: There's a bill on employees choice known as Card Check, which would take away the secret ballot and impose mandatory arbitration. I said when I made the switch I'm still against that bill. Democrats are all for it, Republicans are all against it and I'm the critical vote. And if see that there are other issues where I feel as a matter of conscience, I will continue a filibuster against legislation.

MR. GREGORY: Are there other issues right now that you can name where you don't see eye to eye with this president?

SEN. SPECTER: Well, I'm not going to start to explore a long range of issues. I, I'm not going to do that to...

MR. GREGORY: All right. Well...

SEN. SPECTER: You don't, you, you don't have enough time, David.

MR. GREGORY: Well, hey, we can make time. We're going to get to a few issues in a couple of minutes, but I want to stick to this point, what you're saying, this was politics. This was a cold, hard political reality check. This is what David Broder wrote in his column in the Washington Post, and it was pretty pointed. Look at the headline: "Specter the Defector. The one consistency in the history of Arlen Specter has been his willingness to do whatever will best protect and advance the career of Arlen Specter. ... So, once again, Specter is likely to reap political rewards from his maneuvering. But the Democrats should be open-eyed about what they are gaining from his return to his original political home. Specter's history shouts the lesson that he will stick with you only as long as it serves his own interests--and not a day longer." You're about to stand for re-election as a Democrat. Do you think that reputation hurts you?

SEN. SPECTER: I think it's a, a misreading. I do not think it is true. I can pick up any of the issues and tell you what my reasons were, and I think I have very strong reasons for all of them. There's more than being re-elected here. There's the factor of principle. The Republican Party has gone far to the right since I joined it under Reagan's big tent. When I came to the Senate, you had a roomful of moderate Republicans, Hines and Weicker and Stafford and Chafee and Danforth and on and on. And in recent times I have diverged materially from the Republican line. And the critical factor, David, as most--many people know, was the stimulus package.

MR. GREGORY: Mm-hmm.

SEN. SPECTER: I bucked the Republican line, Susan Collins and Olympia Snowe and I, and that created a schism. My approval rating dropped 30 points with Republicans as a result of that vote, so that as the pictures has evolved I felt a lot more comfortable as a matter of principle with Democrats than with Republicans.
...

MR. GILLESPIE: And I thought the president's comment about empathy, well, I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that's a concern...
MR. GREGORY: Joe, let me talk...
MR. GILLESPIE: ...and Republicans should hone in on that.
MR. GREGORY: Let me talk about tactics on another issue, that's the issue of national security. Here is a Web ad released this week from Republican leader Boehner and Representative, Representative Pete Hoekstra talking about safety. Watch this.
MR. GREGORY: Is that the tone that Republicans should be striking now?
MR. SCARBOROUGH: No. How's that? You wanted a short--no, that is not the tone we should be strike--it seems very discordant right now. The
 

 

2009-05-02 - Article - Michael Fletcher & Paul Kane - Obama Says New Judge Will Blend Respect for Constitution Empathy
Obama Says New Judge Will Blend Respect for Constitution, 'Empathy'
 Successor To Souter Anticipated By October
By Michael A. Fletcher and Paul Kane
Washington Post Staff Writers
Saturday, May 2, 2009

Conservative activists held conference calls, worked to raise the millions of dollars they would need for a public relations campaign targeting a nominee, and sought to activate networks of supporters to oppose Obama's choice, saying the criteria laid out by the president go beyond what is necessary for choosing a justice.

"He says he wants to appoint judges who show empathy, but what does that mean?" said Wendy Long, chief counsel to the Judicial Confirmation Network. "Who do you have empathy for? If you have empathy for everybody, you have empathy for nobody." ....more.

 

 

2009-05-01 - Article - Fox - Major Garrett - Obama Pushes for 'Empathetic' Supreme Court Justices
Obama Pushes for 'Empathetic' Supreme Court Justices
Conservatives and liberals are sharply divided on Obama's pledge to tout empathy in selection of Supreme Court justices.
By Major Garrett  - FOXNews.com
Friday, May 01, 2009

WASHINGTON -- How does President Obama spell "empathy"? S-C-O-T-U-S.

That's insider lingo for the Supreme Court of the United States, and with an impending vacancy on the high court, people on both ends of the political spectrum have begun reading into Obama's views on the subject.

The Supreme Cout it was the topic of the day Friday when Obama surprised the White House press corps by interrupting Press Secretary Robert Gibbs' briefing with word he'd just spoken with Justice David Souter about his plans to retire at the end of the court's term in June.....

But conservatives, who are likely to line up against any "empathetic" Obama nominee for the Souter seat, vehemently disagree.

"President Obama has referred to this nice word empathy," says Wendy Long, legal counsel to the Judicial Confirmation Network. Long clerked for Justice Clarence Thomas, whom Obama has described as one of the kinds of judges he opposes because of their lack of judicial training and lack of empathy.

"(Obama) thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law." ......

"The best way to have empathy for people and the best way to have empathy for our Constitution is to appoint judges who will rule based on the law and to have empathy, if you will, for the law only and to rule based on the law," Long says. "That's why Lady Justice is depicted as blind-folded. Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."


 

2009-05-01 - Press conference - Obama surprise press conference Souter Empathy - Video - OK
c-span search
video Press Conference in HD from youtube whitehouse.
2009-05-01 14:46:40... a person that could understand through empathy the situation that she was dealing...
2009-05-01 15:05:21... own nation. I view that quality of empathy, of understanding and identifying with...
2009-05-01 15:09:13... Garrett) Robert, the President said, empathy in looking at the way the law intersects...
2009-05-01 15:13:24... the applicability of the law, and that empathy factor that the President spoke about...
2009-05-01 - Video - Press conference - Gibbs - Obama announces - full Whitehouse youtube- Video - OK
5/1/09: White House Press Briefing Whitehouse youtube
2009-05-01 -   Press conference - Gibbs - understand through empathy the situation
Section 1 -
Q Two quick questions. One, how important is diversity as an ideal that the President is considering when picking hypothetically the next Supreme Court Justice?
MR. GIBBS: You know, I've heard him talk about this during the presidential campaign and even as a senator. I think the most important thing to him is diversity of experience, somebody who has not just thought about the law, but somebody who has the type of experience to understand how the decisions that he or she might make at any level of the judicial process would affect average, everyday Americans.
So if, for instance, if you are reporting somebody that was -- were to have heard the case involving Lilly Ledbetter and fair pay -- that that's a person that could understand through empathy the situation that she was dealing with.
So I think he is looking for somebody more with a diversity of background of experience than anything else.

Section 2 - Obama
I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

Section 3
Q    Robert, the President said, empathy in looking at the way the law intersects with average, ordinary people -- you said it before.  There are some critics who say the courts should not be about that; that it should be about interpreting the work of legislatures, whether they be federal or state, and the Constitution; and within that construct, law must be made and that you err if you're a Justice when you try to find this empathetic approach outside of what legislatures, duly elected, have decided or what legal precedents established.  What's the response to that line of criticism?
MR. GIBBS:  Well, I would have those critics listen quite carefully to the words of the President just a few moments ago.  He's looking for somebody who understands and respects constitutional values, who understands and respects the rule of law, as well as somebody who understands and respects the importance of what they're deciding and how that impacts millions of Americans in their daily lives.
Section 4
Q    What did he learn specifically from this process when he was a senator when he opposed the nominations of both Justice Alito and Justice Roberts?
MR. GIBBS:  Well, I would point you to statements that he made on both of those -- obviously, in drawing some specific lessons in those time periods.  And I think if you go back and look at one particularly around Justice Roberts, I think you'll see a little bit -- a further explanation of what we will all have been talking about in terms of understanding the applicability of the law, and that empathy factor that the President spoke about just a second ago.

2009-05-01 - Article -  Gibbs - Experience & Empathy
townhall attack

Friday, May 01, 2009
Gibbs tells us "empathy." Empathy! That is a liberal code word for many things relating to the judicial system.
Here are two examples: The "living and breathing" Constitution and legislating from the bench.
 

 

2009-05-01 - AP Report - Souter Replacement With empathy - Video - OK
Video at youtube
AP report
 

 

2009-05-01 - Fox - Developing -  Orin Hatch - that whoever cares about I have empathy  - Video - OK
Video - foxnews -
'Judicial Activism'

'Judicial Activism'

Sen. Hatch warns Obama not to 'play politics' with Supreme Court pick
Video
|05/01/2009|More from Health
|empathyfound at0:56, 2:06
hat whoever cares about I have empathy. Not only for justice system and also outcomes or events which because judicial activism. They shouldn't. That they should not play politics of this job this is a job where. I don't live within the constraints of the constitution
“…ago -- heat -- that whoever cares about I have empathy . Not only for justice system and also outcomes or events which…”
“…the campaign. That that politics should be involved that empathy for their involvement. In their decision making that…”
 


2009-05-01 - Fox - Bret Baier - Orin Hatch -
he wants empathy for one side and what's wrong - Video - OK
Opening on the Highest Court'Judicial Activism'
 Video - foxnews   Opening on the Highest Court
Published: Fri, 1 May 2009
Description: Conservatives fear President Obama will appoint major liberal to replace Justice Souter on the Supreme Court
“…What he means is he wants empathy for one side and what's wrong -- that is that it is. …”
“…the White House says you can balance the constitution and empathy or its allies say mr. Obama won that argument during…”

 

2009-04-26 - Article - George Lakoff - Torture, Empathy, and Democracy  **
Torture, Empathy, and Democracy
George Lakoff
Sunday April 26, 2009 10:
30 am
President Obama has argued that empathy is the basis of our democracy. It is because we care about others, he has argued, that we have principles like freedom and fairness, not just for ourselves but for everyone.  I have found, in studies of largely unconscious political conceptual systems, that empathy is the basis of progressive political thought, and the basis for the very idea of social, not just individual, responsibility. Conservative political thought is otherwise structured, based on authority, discipline, and responsibility for oneself but not others. The major moral, social, and political divide in America centers around empathy.
 


2009-04-16 - Article - Wendy Long - Whats the Matter with Empathy
What’s the Matter with Empathy?

Obama’s criterion for picking federal judges would turn equal justice on its head.
By Wendy Long a Wendy Long is legal counsel to the Judicial Confirmation Network.
During the presidential campaign, candidate Barack Obama said that “the criteria by which I’m going to be selecting my judges” is whether they have “the heart, the empathy,” for certain groups of people.
Those worthy of empathy, according to candidate Obama, include the “young teenage mom,” the “poor,” the “African-American,” the “gay,” the “disabled,” the “old.” What’s wrong with being empathetic to all these groups in particular, or to any group or individual in general?
What’s wrong with it is that federal judges swear an oath to “administer justice without respect to persons” and to “do equal right to the poor and to the rich,” among other things. So when, for the first time in American history, a candidate for president announced that he would seek judges whose decision-making is premised explicitly upon partiality — rather than upon the impartiality that the law requires of a judge — it was so unprecedented and so outlandish that many thought it was just campaign talk. Maybe it was something that had worked for some swing-state focus group.
It wasn’t.
President Obama’s first appellate nominee, Judge David Hamilton of the United States District Court for the Southern District of Indiana, has a long résumé of activism that suggests clearly where his “empathy” lies. His first job, fresh out of college, was as a fundraiser for the Philadelphia branch of ACORN, the “community-organizing” group that has been accused of serial election fraud. He later served as a board member, and vice president for litigation, of the Indiana ACLU. And it is very much ACORN/ACLU/Obama–style “empathy” on display in Hamilton’s judicial opinions.
Let’s take just three of his most important constitutional decisions and see how this “empathy” plays out — and for whom.
1. Empathy for a crack-dealing mother, over school officials doing their jobs: United States v. Hollingsworth.
2. Empathy for abortionists, over citizens governing through their elected officials in a democracy: A Woman’s Choice et al. v. Newman.
3. Empathy for those who want to purge religion from the public square, over people of faith: Hinrichs et al. v. Bosma.
 ...more.


2009-04-10 - Matthews claims that by citing "empathy,"
Obama is not looking for "a great constitutional scholar or a jurist"; Mitchell disagrees - Video -
http://mediamatters.org/mmtv/200905100002
 


2007-03-28 - ColbertNation - Evolution he has no empathy - Video - OK
March 28, 2007
Intro - 3/28/07
Stephen proves that evolution does not exist, he has no empathy
opening section is good.

 

2009-03-24 - Fox - Bill OReilly - Rove - showed some empathy with people - Video - OK
Rove Reacts
Video -foxnews  - Rove Reacts
Rove Reacts
Published: Tue, 24 Mar 2009
Description: Former Bush adviser analyzes Obama's prime-time address

For Barack Obama I think you touched on at the moment where you showed some empathy with people around the country making the sacrifice but I. I think your overall analysis of pretty pretty accurate that he was a million in -- the night going over the talking points.

 

2009-03-24 - Fox - Bill OReilly -  Dick Moris - I thought the empathy one that you - Video - OK
Presidential Presser
http://www.foxnews - Presidential Presser
Tue, 24 Mar 2009
Description: Dick Morris highlights best and worst moments of Obama's address
 I thought the empathy one that you -- where he actually spoke about people it was the only time in the conference and get. Worst moment was when he talked about the charitable charitable donations. I hit saying that it wouldn't affect whether people --
 

 

2009-03-18 - Article - Michael A. Fletcher - Obama Names David Hamilton to Appeals Court
Obama Names Judge to Appeals Court
President Praises David Hamilton of Indiana as a Moderate
By Michael A. Fletcher Washington Post Staff Writer Wednesday, March 18, 2009; Page A04
Obama named Hamilton, 51, to a vacancy on the U.S. Court of Appeals for the 7th Circuit, a choice administration officials said signals his intention to pick judicial moderates with diverse résumés and a record of what he considers good judgment and "empathy" for the people involved in cases before the courts....
Conservatives also ridiculed Obama's interest in the "empathy" demonstrated by a prospective nominee, saying that it has nothing to do with a judge's work of interpreting statutes and the Constitution. "Who's to say who you are supposed to be empathetic toward?" said Curt Levey, executive director of the Committee for Justice, a conservative legal advocacy group. Liberal activists defended Obama's standard, calling it central to the role of courts in society. "What he is signaling, which is very important, is an acknowledgment of the importance of having judges who understand how the law affects everyday Americans," said Nan Aron, president of the Alliance for Justice.


 2009-03-18 - Article - WH Confirms Judicial Activism Pledge
 - Video - OK
March 18, 2009
ABA Bias; WH Confirms Judicial Activism Pledge
Apparently, the President feels no embarrassment about promoting judicial activism. During the presidential campaign, Obama raised eyebrows and controversy with his surprisingly candid remarks advocating an activist judicial philosophy in which “the critical ingredient is supplied by what is in the judge's heart,” and with his complementary pledge to appoint judges with “the empathy,

 

 

 2009-03-17-  Press conference - Gibbs  - empathize and walk in someone's shoes find video
transcript

Q Thanks, Robert. The President made his first judicial pick today, David Hamilton. And in sort of discussing it, a senior administration official talked about the President's desire to be -- to select judges who were empathetic to real people -- that was something he talked about on the campaign. This is something that some -- particularly conservative critics have an issue with because they wonder how that wouldn't butt up against having to work within the rule of law, follow the rule of law. And I'm wondering if you can address that, and also to tell us whether you would consider Judge Hamilton to be a moderate.
MR. GIBBS: You know, let me resist the temptation to get involved in labels, but understand that what I think you're referring to from a senior administration official is something that he's enumerated many times in the past, and I would point you specifically to statements that he made surrounding confirmation votes for Justices Roberts and --
Q Alito.
I'd point you to this, and we can certainly send it to you -- he'll be far more eloquent than I am in discussing the notion that there are cases that judges, particularly at this level, see that requires on -- regardless of which label you pick up, whether it's progressive, or conservative, or moderate, or what have you, that your own empathy and value system leads you to make a conclusion one way or the other.
The President believes that in making decisions on those justices, and in going forward and making judicial picks, that a wide variety of past experience and having the ability to empathize and walk in someone's shoes provides valuable perspective for somebody making important decisions from the bench.

 

2009-03-13 - Bill Moyer and Armstrong - Compassion - Video - OK
http://www.pbs.org/moyers/journal/03132009/profile.html

 

 

2009-02-27 - The Empathy Dodge
Conservatives have interpreted this to mean that Obama seeks judges who will act in a narrow partisan interest. "[Obama] said that a judge has to be a person of empathy," Sen. Orrin Hatch said on ABC's This Week in early May. "What does that mean? Usually that's a code word for an activist judge."
 

2009-01-27 - Daily Show - Gwen Ifil - empathy mentioned  - Video - OK
January 27, 2009
Gwen Ifill describes Barack Obama's attempt to empathize with the American people.
http://www.thedailyshow.com/video/index.jhtml?videoId=216987&title=Gwen-Ifill

 


2008


 

2008-11-24 - Article - Kevin Mooney - Judicial Nominees under Obama Must Keep ‘Oath’  McConnell
Monday, November 24, 2008
By Kevin Mooney, Staff Writer
While speaking at a Planned Parenthood conference in July 2007, for example, Obama discussed the U.S. Supreme Court and the qualifications that he would look for in potential nominees.
 “We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom,” said Obama. “The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old, and that's the criteria by which I'm going to be selecting my judges.”
This “unorthodox” view of the judiciary’s proper role in America’s constitutional system will be tested during the confirmation process, if it means nominees are predisposed to favor certain sides in litigation based on empathy and not merit, McConnell said.
 The “empathy” approach “calls into question whether nominees chosen on these grounds will ever be capable of living up to their solemn oath of administering justice,” he said. “Republicans have always insisted the judicial oath means what it says, and we will continue to insist on it.”
 “If President Obama’s top criteria in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law,” said McConnell. “There is one side that judges should be on, just one side – and that’s the side of the law.”
 


2008-10-21 -  FOX Friends -
Shannon Breem - Peter Johnson - Obama and the Supreme Court  - Video - OK
Video - foxnews -
Supreme' Decision
Obama says he would appoint justices who show empathy
'Supreme' Decision
Supreme' Decision - Published: Sun, 26 Oct 2008
Description: How will the next president affect the Supreme Court? Let's take a look at what Barack Obama said here he said. His will look more -- judicial nominees with the heart the empathy to recognize what it's like to be. A teenage mom he says the empathy to understand what it's like to be poor or African American or gay or disabled or old that Barack Obama's platform your analysis --"

 

 

2007-08-10 - article - Markus Dirk Dubber - The Sense of Justice; Empathy in Law and Punishment
"Below is a link to a review of the book, which points out EXACTLY what "empathy" means in a legal context.  It includes an example of a typical outcome one can ALWAYS expect when empathy is not employed: a Ku Klux Klansman murders a black man--and goes free because the jury does not, cannot, "feel" a need for justice.  Why don't I see the media rushing to the phone to interview this professor at the SUNY Buffalo School of Law,  Marcus Dirk Dubber.  Hmmm.  I guess it's simply impossible that Obama may have read this book or, with his unique legal and racial background, compounded with the "empathy" required to himself be an author, came to the same reasoned conclusions on his own. "
"Dubber concludes that there is such as thing as a “healthy sense of justice” and it is rooted in an emotion, namely empathy, which deserves a respected place in our system of law.  Particularly in the area of criminal law, when a jury is presented with a case, Dubber believes that it has a duty to empathize with both the victim of the alleged crime and with the defendant. The failure to do so results in injustice."


 

2006-01-11 - Samuel Alito confirmation - what he cares about  - Video - OK
what he cares about?
hearings
Article -
Article salon

U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

 

1991-07-01 - Bush on Thomas and Empathy  - Video - OK
Video
Article at TPM
Article at media maters

President George H. W. Bush said: I have followed this man's career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor. He's also a fiercely independent thinker with an excellent legal mind, who believes passionately in equal opportunity for all Americans. He will approach the cases that come before the Court with a commitment to deciding them fairly, as the facts and the law require

 

 

 

 

 

 

OTHERS NOTES:
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Short Empathy comments:

 

 

 

 

 

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Media Sources indexes to search

 

Conservatives Attacking Empathy by Person

 

Other articles by the anti Obama and empathy organization
JudicialNetwork.com/category/tag/empathy 

* Thumbs-Down on Obama’s Empathy Standard for SCOTUS
* Supreme Court Nominee Debate Defined by Conservatives
*
Obama’s Own Words
* What's the Matter with Empathy?
*
Obama Sticking With Lawless Empathy Standard