Senate Debate on Empathy
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 Dick Durbin, Democrat of Illinois:

Thank you very much, Mr. Chairman. Judge Sotomayor, welcome to you and your family. These nomination hearings can be long and painful. But after surviving a broken ankle and individual meetings with 89 different U.S. senators in the past few weeks, you are certainly battle tested.

At the nomination hearing for Judge Ruth Bader Ginsberg in 1993, my friend, Senator Paul Simon of Illinois, asked the following question: You face a much harsher judge than this committee; that's the judgment of history. And that judgment is likely to revolve around the question did she restrict freedom or did she expand it.

I asked this question with respect to the nominations of Chief Justice Roberts, Justice Alito. And I think it's an important question of any court nominee, particularly, to the Supreme Court. The nine men and women on the Supreme Court serve lifetime appointments, and they resolve many of our most significant issues.

It's the Supreme Court that defines our personal right to privacy and decides the restrictions that are to be placed on the most personal aspects of our lives. The Court decides the rights of the victims of discrimination, immigrants, consumers. The nine justices decide whether Congress has the authority to pass laws to protect our civil rights and our environment.

They decide what checks will exist on the executive branch in war and in peace. Because these issues are so important, we need justices with intelligence, knowledge of the law, the proper judicial temperament, and a commitment to impartial justice. More than that, we need our Supreme Court justices to have an understanding of a real world and the impact their decisions will have on everyday people. We need justices whose wisdom...

PROTESTER: (OFF-MIKE)

LEAHY: The officer will remove the person. The officer will remove the person. We will stand -- the time will go -- as I've said before, and both Judge -- both Senator Sessions and I have said, you are guests of the Senate while you are here. Everybody is a guest of the Senate. Judge Sotomayor deserves respect, to be heard. These Senators deserve the respect of being heard.

No outburst will be allowed. It might interrupt the ability of the senators or of the judge, or, I might say, of our guests who are sitting here patiently listening to everything that's being said.

I thank the Capitol Police for responding as quickly and as rapidly, as professionally as they always do. Apologize to Senator Durbin for the interruption. I yield back to him.

DURBIN:

 Thank you, Mr. Chairman. More than that, we need our Supreme Court justices to have an understanding of the real world, the impact their decisions have on everyday people. We need justices whose wisdom comes from life, not just from law books.

Sadly, this important quality seems to be in short supply. The current Supreme Court has issued many decisions that I think represent a triumph of ideology over common sense.

When Chief Justice Roberts came before this committee in 2005, he famously said, "A Supreme Court justice is like an umpire, calling balls and strikes." We have observed, unfortunately, that it's a little hard to see home plate from right field. If being a Supreme Court justice were as easy as calling balls and strikes, we wouldn't see many five-and-four decisions in the court. But in the last year alone, 23 of the Supreme Court's 74 decisions were decided by a five- to-four vote.

The recent decision of Ledbetter v. Goodyear Tire & Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simple, fundamental - should women be paid the same as men for the same work? Lilly Ledbetter was a manager at a Goodyear Tire plant in Alabama. Worked there for 19 years, didn't learn until she was about to retire that her male colleagues in the same job were paid more.

She brought a discrimination lawsuit. The jury awarded her a verdict. The Supreme Court, in a five-four decision, reversed it, threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late. They said her complaint should have been filed within 180 days of the first discriminatory paycheck.

That decision defied common sense and the realities of a workplace where few employees know what their fellow employees are being paid. It contradicted the decades of past precedent.

In the Safford v. -- United School District v. Redding, 13-year- old girl strip-searched at her school because of a false rumor that she was hiding ibuprofen pills. At the oral argument in April, several of the Supreme Court justices asked questions about the case that, unfortunately, revealed a stunning lack of empathy about the eighth grade victim.

One of the justices even suggested that being strip-searched was no different than changing clothes for gym class. Although Justice Ruth Bader Ginsburg helped her eight male colleagues understand why the strip search of a 13-year-old girl was humiliating enough to violate her constitutional rights, a majority of the justice ruled that the school officials were immune from liability.

Five-to-four case in 2007, Gonzales v. Carhart, Supreme Court again overturned past precedent and ruled for the first time it was permissible to place restrictions on abortion that don't include an exception regarding a woman's health.
Judge Sotomayor, you have overcome many obstacles in your life that have given you an understanding of the daily realities and struggles faced by everyday people.

You grew up in a housing complex in the Bronx. You overcame a diagnosis of juvenile diabetes at age 8 and the death of your father at age 9.

Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale. I know how proud you are of your mom and your family.

Your first job out of law school was an assistant district attorney where you prosecuted violent crime. You went on to work in a law firm representing corporations, which gave you another valuable perspective.

In 17 years as a federal judge, you've demonstrated an ability to see both sides of the issues. You earned a reputation as being restrained and moderate and neutral. Of the 110 individuals who have served as Supreme Court justices throughout our nation's history, 106 have been white males. Until Thurgood Marshall's appointment to the Supreme Court a generation ago, every justice throughout our nation's history had been a white male.

President Obama's nomination of you to serve as the first Hispanic and the third woman on the Supreme Court is historic. The president knows and we know that, to be the first, you have to meet a higher standard.

Before you can serve on this court, the American people, through their elected senators, will be asked to judge you. We owe it to you and the Constitution to be a fair jury. Thank you, Mr. Chairman.