Senate Debate on Empathy
=====================================
2009-07-07 - Jeff
Sessions - judge's personal core concerns values and empathy
Sessions, Jeff [R-AL]
Begin2009-07-07
11:04:11 End
11:22:05
Length 00:17:54
Text
From the Congressional Record
In 2005, then-Senator Obama explained that 5 percent of cases, he believes,
are determined by ``one's deepest values and core concerns ..... and the depth
and breadth of one's empathy.'' He means a judge's personal core concerns,
values, and empathy.
Well, according to the President, in 5 percent of the cases where issues are
close, that is acceptable. I think we must draw from his statement that it is
acceptable for judges to not set aside their personal beliefs, not discard
personal bias, not dispense with their personal experiences as they make
rulings, as they decide cases, which is what judges do.
According to the President, in 5 percent of cases, Lady Justice should remove
her blindfold, take a look at the litigants, and then reach out and place her
thumb on the scales of justice on one side or the other. I think this is a
dangerous departure from the most fundamental pillar of our judicial
system--judicial impartiality. That is why judges are given lifetime
appointments. They are supposed to be unbiased and impartial.
Whatever this new empathy standard is, it is not law. It is more akin to
politics than law. Whenever a judge puts his or her thumb on the scale of
justice in favor of one party or another, the judge necessarily disfavors the
other party. For every litigant who benefits from this so-called empathy, there
will be another litigant who loses not because of the law or the facts, but
because the judge did not empathize or identify with them.
What is empathy? Is this your personal feeling that you had a tough childhood or
some prejudice that you have--you are a Protestant or a Catholic or your
ethnicity or your race or some bias you brought with you to life and to the
court? Is that what empathy is? Well, it has no objective meaning, and that is
why it is not a legal standard. The oath of ``impartiality'' to ``equal justice
to the rich and the poor alike'' is violated when such things infect the
decisionmaking process.
With this as his stated standard, the President nominated Judge Sonia Sotomayor
for the Supreme Court of the United States. Thus far our review of her record
suggests that she may well embrace the President's notion of empathy, and I will
share a few thoughts on that.
On a number of occasions over the years, Judge Sotomayor delivered a speech
entitled ``Women in the Judiciary.'' In it she emphasizes that she accepts the
proposition that a judge's personal experiences affect judicial outcomes:
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Mr. SESSIONS. Madam President, I express my appreciation to the Senator from
Tennessee for his insightful comments. Indeed, it is a tangled web we create
when we first start to regulate. It is a tangled web, too, when we start owning
automobile companies which we know nothing about. Madam President, we are
looking forward to next week and working as hard as we can to ensure that we
have a very fine confirmation hearing in the Judiciary Committee for the judge
nominated to be a Justice of the
Supreme Court by President Obama, Judge Sotomayor. I will share a few thoughts
about that and some matters that I think are important for my colleagues to
think about as they study this issue and work to do the right thing about it.
The President's nominee is, of course, his nominee, and it is our
responsibility--and the only opportunity the American people have to know
anything about this process is the hearing in which the nominee has to answer
questions and respond. Senators will make comments and ask questions.
When we elevate one of our citizens to a Federal judgeship, we give them an
awesome responsibility, and particularly so when elevated to the Supreme Court.
They are the final word on our Constitution, how the Constitution and our laws
are to be interpreted. Some judges, I have to say, have not been faithful in
their responsibilities. They have allowed personal views and values to impact
them, in my view. We ask them as judges to take on a different role than they
have in private practice. We
ask them to shed their personal beliefs, their personal bias and, yes, their
personal experiences. We ask them to take an oath to impartial justice.
Our wonderful judicial system--the greatest the world has ever seen--rests upon
this first principle. It is an adversarial system that is designed to produce,
through cross-examination and other rules and procedures, truth--objective
truth. The American legal system is founded on a belief in objective truth and
its ascertainability. This is a key to justice.
But in this postmodern world, our law schools and some intellectuals tend to be
of a view that words don't really have meaning; words are just matters some
politically powerful group got passed one day, and they don't have concrete
meanings and you don't have to try to ascertain what they meant. And, indeed, a
good theory of law is to allow the judge to update it, change it, or adopt how
they would like it to be.
I suggest this is not a healthy trend in America. It impacts this Nation across
the board in so many ways. But I think it is particularly pernicious, when it
comes to the law, if that kind of relativistic mentality takes over.
This notion of blind justice, objectivity, and impartiality has been in our
legal system from the beginning, and it should not be eroded. Every judge takes
this oath. I think it sums up so well the ideals of the fabulous system we have.
A judge takes this oath:
I do solemnly swear that I will administer justice without respect to persons,
and do equal right to the poor and to the rich, and that I will faithfully and
impartially discharge and perform all the duties incumbent upon me under the
Constitution and laws of the United States, so help me God.
Well, I guess the Court hasn't gotten around to striking their oath yet--at
least that part that says ``so help me God.'' Those phrases have certainly been
attacked around the country by Federal judges, in many instances. This oath--I
have to say this--stands in contrast to the President's standard for judicial
nominees.
I am concerned, based on her speeches and statements, that it may also be the
judicial philosophy of Judge Sotomayor.
In 2005, then-Senator Obama explained that 5 percent of cases, he believes, are
determined by ``one's deepest values and core concerns ..... and the depth and breadth of one's
empathy.'' He means a judge's personal core concerns, values, and
empathy.
Well, according to the President, in 5 percent of the cases where issues are
close, that is acceptable. I think we must draw from his statement that it is
acceptable for judges to not set aside their personal beliefs, not discard
personal bias, not dispense with their personal experiences as they make
rulings, as they decide cases, which is what judges do.
According to the President, in 5 percent of cases, Lady Justice should remove
her blindfold, take a look at the litigants, and then reach out and place her
thumb on the scales of justice on one side or the other. I think this is a
dangerous departure from the most fundamental pillar of our judicial
system--judicial impartiality. That is why judges are given lifetime
appointments. They are supposed to be unbiased and impartial.
Whatever this new empathy standard is, it is not law. It is more akin to
politics than law. Whenever a judge puts his or her thumb on the scale of
justice in favor of one party or another, the judge necessarily disfavors the
other party. For every litigant who benefits from this so-called empathy, there
will be another litigant who loses not because of the law or the facts, but
because the judge did not empathize or identify with them.
What is empathy? Is this your personal feeling that you had a tough childhood or
some prejudice that you have--you are a Protestant or a Catholic or your
ethnicity or your race or some bias you brought with you to life and to the
court? Is that what an empathy is? Well, it has no objective meaning, and that is
why it is not a legal standard. The oath of ``impartiality'' to ``equal justice
to the rich and the poor alike'' is violated when such things infect the
decision making process.
With this as his stated standard, the President nominated Judge Sonia Sotomayor
for the Supreme Court of the United States. Thus far our review of her record
suggests that she may well embrace the President's notion of empathy, and I will
share a few thoughts on that.
On a number of occasions over the years, Judge Sotomayor delivered a speech
entitled ``Women in the Judiciary.'' In it she emphasizes that she accepts the
proposition that a judge's personal experiences affect judicial outcomes:
In short, I accept the proposition that a difference will be made by the
presence of women on the bench and that my experiences will affect the facts
that I choose to see as a judge.
In fact, in one speech, she rejected another woman judge's view that a woman and
a man should reach the same decision in a case. She explicitly rejected that
concept. She reaffirms:
I simply do not know exactly what that difference will be in my judging, but I
accept there will be some [differences] based on my gender and the experiences
it has imposed on me.
I think this would tend to be a rejection of even the aspiration, the ideal, of
impartiality that is fundamental to our legal system and our freedoms.
In a later speech, Judge Sotomayor takes a giant step, expressing a desire to
draw upon her experiences in her judging. She states:
Personal experiences affect the facts judges choose to see. My hope is that I
will take the good from my experiences and extrapolate them further into areas
with which I am unfamiliar. I simply do not know exactly what that difference
will be in my judging. But I accept that there will be some based on my gender
and my Latina heritage.
Well, are the days now gone when judges should see their taking office as a
commitment to set aside their personal experiences, biases, and views when they
put on the robe? Gone are the days when judges even aspire to be impartial.
In that same speech, which has been given a number of times, Judge Sotomayor
goes a step further, saying:
I willingly accept that we who judge must not deny the differences resulting
from experience and heritage, but attempt continuously to judge when those
opinions, sympathies and prejudices are appropriate.
She says a judge should attempt continuously to judge when those opinions,
sympathies, and prejudices are appropriate. That means that a judge's prejudices
are appropriate to use in the decisionmaking process.
I find this to be an extraordinary judicial philosophy. Some might say you
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are making too much of it, that
empathy sounds fine to me; I don't have any
problem with that. Empathy is great, perhaps, if you are the beneficiary of it.
The judge is empathetic with you, your side of the argument, but it is not good
if you are on the wrong side of the argument, if you don't catch a judge's fancy
or fail to appeal to a shared personal experience.
This approach to judging, as expressed in her speeches and writings, appears to
have played an important part in the New Haven firefighters' case Senator
McConnell mentioned earlier. These are the 17 firefighters who followed all the
rules, studied for the test. It was publicly set out how the promotions would
take place in that department. A number of people passed, but a number of people
did not, and there were a number of minorities who did not pass. They wanted to
change the test
after it had been carried out, to change the rules of the game after it had been
carried out because they did not like the results. This is a results-oriented
question.
Bowing to political pressure, the city government looked only at the test
results and the statistical data and changed the rules of the game. They threw
out the test. This was challenged by the persons who passed. The district judge
then agreed with the city in a 48-or-so-page opinion. It was appealed to Judge
Sotomayor's court. In one paragraph only, she agreed with that decision, even
though it raised fundamental, important constitutional questions, important
questions.
She concluded that the complaining firefighters were not even entitled to a
trial, that the pretrial motions were sufficient to deny them the remedy they
sought and to affirm the city's opinion in one paragraph.
The U.S. Supreme Court disagreed. They wrote almost 100 pages in their opinion,
and all nine Justices voted to reverse the opinion. It was not 5 to 4. Five of
the Justices, the majority, ruled that based on the facts in evidence that had
been presented prior to trial, the firefighters were entitled to total victory
and be able to win their lawsuit. This is a pretty significant reversal, I have
to say.
The question is: Did she allow her prior experiences and beliefs to impact her
decision in that case? I point out that she was an active member of the Puerto
Rican Legal Defense Fund, where she spent a number of years working on cases
such as this and filing litigation and challenging promotion policies in cities
around the country, which is a legitimate thing for a group to do. But they did
take a very aggressive standard criticizing tests and the standardized process
of testing.
Of course, her stated philosophy is that a judge should use life experiences in
reaching decisions. We do know she believes a judge is empowered to utilize his
or her personal ``opinions, sympathies, and prejudices'' in deciding cases. We
do know her particular life experiences with the Legal Defense Fund were
contrary to the claims brought by the New Haven firefighters. We know she was a
leader and board member and chair of that organization's litigation committee.
According to the New York
Times, she ``met frequently with the legal staff of the organization to review
the status of cases.'' According to the New York Times, ``she was involved and
was an ardent supporter of their various legal efforts.'' She oversaw, as a
board member and litigation chair, several cases involving the New York City
Department of Sanitation, which challenged a promotion policy because Hispanics
comprised
5.2 percent of the test takers but only 3.8 percent had passed the test. They
declared that was an unfair result and challenged the test. Another involved the
New York City Police Department on behalf of the Hispanic Police Society.
Another one involved police officers in a discrimination case challenging the
New York Police Department's lieutenants exam, claiming that exam was biased.
Under her leadership, the Puerto Rican Legal Defense Fund, before she became a
judge, involved itself in a series of cases designed to attack promotion exams
because the group concluded that after the fact, after the test, not enough
minorities were being promoted. It sounds a lot like this firefighters case we
talked a good bit about so far.
We are left to wonder what role did the judge's personal experiences play when
she heard the case. Did her personal views, as she has stated, ``affect the
facts she chose to see?''