Senate Debate on Empathy
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2009-07-20 - Mitch McConnell - Empathy Standard

Senate Session
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Mr. McCONNELL. Mr. President, I want to begin by thanking the Judiciary Committee staff, as well as Senators LEAHY and SESSIONS, for conducting a collegial, civil, and dignified hearing on the matter of the Supreme Court nomination. In my view, the hearing was in perfect keeping with the importance of the task before it.

Article II, section 2 of the Constitution says the President ``shall nominate''--``by and with the Advice and Consent of the Senate''--``Judges of the supreme Court.'' It is an obligation that all of us in the Senate take very seriously, even though Senators have not always agreed on the exact meaning of the phrase ``advise and consent.'' In fact, it has been the subject of significant disagreement and struggle over the years.

I remember from my days as a young staffer on the Senate Judiciary Committee in the late 1960s and early 1970s, when the debate flared up over the nominations of Clement Haynsworth and Harrold Carswell after a full century in which appointments to the Supreme Court had more or less been a sleepy Presidential prerogative.

It was during that time that I first grasped the danger of politicizing the process. By focusing on a nominees's [Page: S7669]
ideology or political views above all else, I feared the Senate would end up distorting its traditional role of providing advice and consent and weaken the Presidential prerogative of making appointments to the Court.

I was so concerned, in fact, about the potential dangers that I wrote a law review article on the topic, which I have repeatedly returned to over the years. Its purpose was to establish a meaningful standard for considering Supreme Court nominees that would bring some consistency to the process.

In the course of developing that standard, I went back and looked at the history of nominations, and I noticed something interesting: Every time a Senator had opposed nominees in the past, the reason for doing so was almost always based on the nominees's ``fitness''--even if it was perfectly clear to everyone else that the Senator's opposition was based on political or ideological differences.

What this polite fiction showed me, quite clearly, was that up until fairly recent history, ideology had never been viewed as an openly acceptable reason to oppose a nominee. And, in my view, this aversion to a political litmus test was a good convention and well worth following if we wanted to avoid gridlock every time the White House switched parties.

So I developed a list of fairly standard criteria that I had hoped would govern the process: A nominee must be competent; have obtained some level of distinction; have a judicial temperament; violated no existing standard of ethical conduct; and have a clean record in his or her life off the bench.

In short, a President should be given great deference on his choice of a nominee, and these criteria certainly allowed that. As a Senator, I have consistently applied these criteria to Supreme Court nominees by Presidents of both parties.

In adhering to this standard, I was confident I had history on my side. Despite a few notable exceptions, during the last century the Senate understood its advice and consent role to be limited to an examination of a nominee's qualifications, not his or her ideology. This attitude is consistent with the Framers' decision, after no little debate, to invest the President, not the Senate, with the power to nominate Justices. They did not want politics to interfere. And that is why it has always
been my view that opposing a nominee to the Supreme Court because he or she has a different judicial philosophy than I do was not a valid reason for doing so.

During the Clinton years, I had no illusions about the ideology or political views of Stephen Breyer or Ruth Bader Ginsburg. Justice Ginsburg's views on a number of contentious issues were well known and clearly different than my own, such as her view that Mother's Day should be abolished or that the Boy Scouts and Girl Scouts should be criticized for perpetrating false stereotypes about gender.

Most Americans, and certainly most Kentuckians, do not think those kinds of things. Yet despite that, I and the vast majority of my Republican colleagues voted for Justice Ginsburg. Why? Because the Constitution gave the President the power to nominate. And, in my view, Justice Ginsburg met the traditional standards of competence, distinction, temperament, and ethical conduct.

The vote in favor of Justice Ginsburg was 96 to 3. The vote in favor of Justice Breyer was 87 to 9. I voted for both, just as I had voted for every previous Republican nominee to the high Court since my election to the Senate--consistent with my criteria and based on their qualifications.

In voting for nominees such as Ginsburg and Breyer, it was my hope that broad deference to a President's judicial nominees would once again become the standard. Even if the treatment of Republican nominees, such as Robert Bork and Clarence Thomas, suggested that many Democrats felt differently than I did, it was still possible at that time to imagine a day when the traditional standard would reemerge. As it turned out, that hopefulness was misplaced and short-lived.

Things changed for good during the last administration. It was then that the Democrats turned their backs on the old standard once and for all. Ideology as a test would no longer be the exception but the rule. The new order was firmly established at a Democratic retreat in April 2001 in which a group of liberal law professors laid out the strategy for blocking any high-level conservative judicial nominee. The strategy was reinforced during a series of hearings in which Senator Schumer
declared that ideology alone--ideology alone--was sufficient reason to block judicial nominees.

These events marked the beginning of a seismic procedural and substantive shift on judicial nominees, and the results were just as I had anticipated as a young staffer. Democrats would now block one highly qualified nominee after another to the appeals court for no other reason than the fact that they were suspected of being too conservative for their tastes.

Miguel Estrada was one of the first victims of the new standard. Because he had been nominated by a Republican, Estrada got no points for his compelling personal story, despite the fact that he had come here as a child from Honduras, went to Harvard Law School, clerked on the U.S. Supreme Court, and served as a prosecutor in New York and at the Justice Department. He was blocked by seven leadership-led filibusters--an unprecedented action for an appeals court nominee.

Opponents of the Estrada nomination were ruthless and eventually succeeded in driving him to withdraw from consideration after more than 2 years of entrenched opposition. He was not alone. Democrats employed the filibuster strategy against an entire block of Republican nominees on the insistence of special interest groups and in complete contravention of Senate tradition--often relying on the flimsiest of pretexts for doing so.

As a result, several widely respected, highly qualified nominees saw what should have been a high honor transformed into a humiliating and painful experience for themselves and for their families; the country was deprived of their service on the circuit court; and the standard I had articulated and applied throughout my career became increasingly irrelevant.

Despite my efforts to preserve deference and keep ideology out of the process, the proponents of an ideological test had won the fight; they changed the rules. Filibustering nominees on the grounds of ideology alone was now perfectly acceptable. It was now Senate precedent.

Some may argue that Republicans were no better since a few of them supported filibusters against two Clinton-era nominees, Richard Paez and Marsha Berzon. It is a flawed comparison. First, neither filibuster attempt got very far. And in both cases, the leadership--the leadership--of the Republican Party, including me, strongly opposed the effort.

Senator Lott, the then-majority leader at the time, voted in favor of allowing an up-or-down vote on both nominees, even though he would ultimately vote against them as nominees to the Ninth Circuit, as did I and the vast majority of our conference. It was our view that a President--and in that instance President Clinton--deserved considerable deference and that therefore his nominees should not be filibustered.

The new standard devolved even further during the Roberts nomination. Judge Roberts was a spectacular nominee, a man whose background and legal abilities, even according to Democrats, made him one of the most qualified Supreme Court nominees in the history of our country. For him, Democrats came up with an even more disturbing test.

Ironically, no one Senator articulated this new test more forcefully than Senator Obama. In a floor speech announcing his opposition to John Roberts, Senator Obama was perfectly straightforward. Roberts was completely qualified, he said. But he still would not get his vote. Here is what Senator Obama said on the Senate floor:


There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble. He is personally decent.


The reason Senator Obama would vote against Judge Roberts, he said, rested not on any traditional standard, but on a new one, a standard which amounted to a kind of alchemy based on what he described as ``one's deepest values, one's core concerns, one's broader perspectives on how the world [Page: S7670]
works, and the depth and breadth of one's empathy''--what has come to be known as the ``empathy standard.''

So over the course of the Bush administration the rules completely changed. Not only had it become common practice to block nominees on the grounds of ideology, but now it was acceptable to reject someone based solely on the expectation that their feelings--their feelings--would not lead them to rule in favor of certain groups. Suddenly, judges were not even expected to follow the fundamental principle of blind justice. Deference had eroded even more.

As I have 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 are lucky enough to be the person or group that the judge in question has empathy for. In those cases, it is the judge, not the law, who determines the outcome. And that is a dangerous road to
go down if you believe, as I do, in a nation not of men but of laws--which brings us to Judge Sotomayor.

Over the past several weeks, Judge Sotomayor has impressed all of us with her life story. And the confirmation process is not easy. I admire anyone who goes through it, which is why I was gratified by Judge Sotomayor's statement at the conclusion of the hearing that she was treated fairly by everyone.

But the first question I have to ask myself in deciding how to vote on this nominee is this: How stands the traditional standard for voting on nominees?

Deference is still an important principle. But it was clearly eroded during the filibusters of appeals court nominees early in the Bush administration, and it was eroded even further when Senators voted against John Roberts and tried to filibuster Samuel Alito. Moreover, the introduction of a new standard--the empathy standard--forces us to reevaluate again the degree of deference a President should be granted. Isn't it incumbent upon even those of us who have always believed in deference to
be even more cautious about approving nominees in this new environment? I believe it is.

If empathy is the new standard, then the burden is on any nominee who is chosen on that basis to show a firm commitment to equal justice under law. In the past, such a commitment would have been taken for granted. Americans have always had faith that our judges would apply the law fairly--or at least always knew they should. Unfortunately, the new empathy standard requires a measure of reassurance about this. If nominees aren't even expected to apply equal justice, we can't be expected simply
to defer to the President, especially if that nominee, as a sitting judge, no less, has repeatedly doubted the ability to adhere to this core principle.

This doesn't mean I would oppose a nominee just because he or she is nominated by a Democrat. It means that, at a minimum, nominees should be expected to uphold the judicial oath that judges in this country have taken since the earliest days of our Nation; namely, that they will ``administer justice without respect to persons, and do equal right to the poor, to the rich, and ..... faithfully and impartially discharge and perform all the duties incumbent upon them under the Constitution and laws
of the United States, so help [them] God.''

Looked at in this light, Judge Sotomayor's record of written statements suggests an alarming lack of respect for the notion of equal justice and therefore, in my view, an insufficient willingness to abide by the judicial oath. This is particularly important when considering someone for the Supreme Court since, if she were confirmed, there would be no higher court to deter or prevent her from injecting into the law the various disconcerting principles that recur throughout her public statements.
For that reason, I will oppose her nomination.

Judge Sotomayor has made clear over the years that she subscribes to a number of strongly held and controversial beliefs that I think most Americans, and certainly most Kentuckians, would strongly disagree with, but that is not why I oppose her nomination; rather, it is her views on the essential question of the duty of a judge and the fact that there would be no check on those views were she to become a member of the Supreme Court.

In her writings and in her speeches, Judge Sotomayor has repeatedly stated that a judge's personal experiences affect judicial outcomes. She has said her experiences will affect the facts she chooses to see as a judge. Let me say that again. She has said her experiences will affect the facts she chooses to see as a judge. She has argued that in deciding cases, judges should bring their sympathies and prejudices to bear. She has dismissed the ideal of judicial impartiality as an ``aspiration''--an
aspiration--that, in her view, cannot be met even in most cases. Taken together, these statements suggest not just a sense that impartiality is not just impossible but it is not even worth the effort.

But there is more. It appears these views have already found expression in Judge Sotomayor's rulings from the bench. The clearest evidence of this is the judgment of the Supreme Court itself. The Supreme Court doesn't take easy cases. It only takes cases where there is no easy precedent, where the law is not crystal clear, cases where somebody's policy preferences can more easily make their way into an opinion. In this vein, it is worth noting that the Supreme Court has found that Judge Sotomayor
misapplied the law in 9 of the 10 cases in which her rulings were brought before it. In this term, in fact, she is zero for three. Not only isn't this a record to be proud of, together with her statements about impartiality, it is a record to be scared of if you happen to find yourselves standing in front of Justice Sotomayor.

Her most recent reversal by the Court is a perfect illustration of how her personal views can affect an outcome. I am referring to the Ricci case in which a majority of the Justices of the Supreme Court rejected Judge Sotomayor's decision, and all of them, all nine of them, agreed that her reading of the law was flawed.

This was a case in which a group of firefighters who had studied hard and passed a written test for promotion were denied it because not enough minority firefighters had scored as well as they had. In a one-paragraph opinion that a number of judges on her own court criticized as insubstantial and less than adequate given the seriousness of the circumstances, Judge Sotomayor flatly rejected an appeal by firefighters who had scored highly.

Here was a case where Judge Sotomayor's long history of advocacy for group preferences appeared to overtake an evenhanded application of the law. Judge Sotomayor didn't empathize with the firefighters who had earned a promotion, and they suffered as a result. This is the real-world effect of the empathy standard. If the judge has empathy for you, great, but if she has it for the other guy, it is not so good. That is why you can call this new standard a lot of things, but you certainly can't call
it justice.

Judge Sotomayor's record on the Second Circuit is troubling enough, but, as I have noted, at least on the circuit court there is a backstop. Her cases can be reviewed by the Supreme Court. This meant that in the Ricci case, for example, the firefighters whose promotions were unfairly denied could appeal the decision. Fortunately for them, the Supreme Court sided with them over Judge Sotomayor. If, however, Judge Sotomayor would become a Supreme Court Justice, her rulings would be final. She would
be unencumbered by the obligation of lower court judges to follow precedent. She could act more freely on the kinds of views that animated her troubling and legally incorrect ruling in the Ricci case. That is not a chance I am willing to take.

From the beginning of the confirmation process, I have said that Americans expect one thing when they walk into a courtroom, whether it is a traffic court or the Supreme Court, and that is equal treatment under the law. Over the years, Americans have accepted significant ideological differences in the kinds of men and women various Presidents have nominated to the Supreme Court, but one thing Americans will never tolerate in a nominee is a belief that some groups are more deserving of a fair
shake than others. Nothing could be more offensive to the American sensibility than that. [Page: S7671]


Judge Sotomayor is a fine person with an impressive story and a distinguished background. But above all else, a judge must check his or her personal or political agenda at the courtroom door and do justice evenhandedly, as the judicial oath requires. This is the most basic and therefore the most fundamental standard of all upon which judges in our country must be judged. Judge Sotomayor does not meet the test.

Mr. President, I yield the floor.