Senate Debate on Empathy
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Text From the Congressional Record Charles Grassley

http://www.c-spanarchives.org/congress/?q=node/77531&id=9027918

Mr. GRASSLEY. Mr. President, I want to discuss the nomination of Judge Sotomayor to be Associate Justice. I want to begin by saying that I have a lot of respect for her. I think she is an incredibly talented individual who has worked very hard and has had an extraordinary life story. I am impressed with the way Judge Sotomayor was able to beat the odds and reach new heights. Unfortunately, as I voted in committee, I vote on the floor. I cannot support her nomination because of my concerns with
her judicial philosophy.

There are a number of qualifications a Supreme Court nominee should have: a superior intellect, distinguished legal experience, integrity, proper judicial demeanor, and temperament. But the most important qualification of a Supreme Court nominee is truly understanding the proper role of a Justice as envisioned by our great Constitution. In other words, a Justice must have the capacity to faithfully interpret the law and Constitution without personal bias or prejudice.

It is critical that judges have a healthy respect for the constitutional separation of power and the exercise of judicial restraint. Judges must be bound by the words of the Constitution and legal precedent. Because the Supreme Court has the last word as far as what the lower court says, Justices are not constrained like judges in the district and appellate courts. In other words, the Supreme Court and its Justices have the ability to make precedent. Because there is no backstop to the Supreme
Court, Justices are accountable to no one. That is why we must be certain these nominees will have the self-restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences. A nominee to the Supreme Court must persuade us that he or she is able to set aside personal feelings so he or she can blindly and dispassionately administer equal justice for all.

That is what I was looking for when I reviewed Judge Sotomayor's record. That is what I was looking for when I asked Judge Sotomayor questions both at the hearing and in writing. Unfortunately, I now have more questions than answers about Judge Sotomayor's judicial philosophy. I am not convinced that the judge will be able to resist having her personal biases and preferences dictate her judicial methods when she gets to the Supreme Court.

I find it very troubling that President Obama is changing the standard by which our country's Federal judges are selected. Instead of searching for qualified jurists who can be trusted to put aside their personal feelings in order to arrive at a result required by the law, President Obama has said he is looking for a judge who has ``empathy,'' someone who will embrace his or her personal biases instead of rejecting them.

This concept represents a very radical departure from the normal criteria for selecting Federal judges and Supreme Court Justices. In his statement opposing the confirmation of Chief Justice John Roberts, then-Senator Obama compared the process of deciding tough cases in the Supreme Court--can you believe it--comparing it to a marathon. He said:



That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy. ..... Legal process alone will not lead to you a rule of decision. ..... [i]n those difficult cases the critical ingredient is supplied by what is in the judge's heart.  That is the end of the quote from then-Senator Obama.

Until now, judges have always been expected to apply law evenhandedly and to reach the result that the law requires. When speaking about the law, lawyers and judges often talk about what the law is or what the law requires, instead of what the law should be. We expect judges not to confuse the two. We expect judges not to bend the law in order to reach a result that they would want personally instead of what the law requires. We expect judges not to decide cases in favor of a particular litigant
because he or she may be more worthy of compassion. We don't ask what the judge's heart says about a particular case of a legal issue. We ask what the law says.

A mandate of judicial empathy turns that traditional legal concept on its head in favor of a lawless standard. If empathy for a litigant's situation becomes a standard for deciding cases, then there is no limit to the effect on American jurisprudence. If a judge's decision in the hard cases is supplied by the content of his or her heart, then that decision cannot be grounded upon objective legal principles. If the last mile that then-Senator Obama referred to is determined by a judge's deepest
feelings instead of legal precedent, then the outcome will differ based on which judge hears the case. Predictably and consistently, hallmarks of the American legal system will be sacrificed on the altar of judicial persuasion and compassion.

When a judge improperly relies on his or her personal feelings instead of relying solely on the law, it leads to creation of bad precedent. If a judge's decision is affected by his or her empathy or sympathy--whatever you want to say--for an affected party or group, then the law of unintended consequences dictates that others will be affected in the future, beyond the present case, and they will be judged by a standard that should not be applied to them because of what a previous judge did about
personal sympathy instead of what the law says.

Justice is blind. Empathy is not. Empathetic judges take off the blindfolds and look at the party instead of merely weighing the evidence in light of what the law is. Empathetic judges put their thumbs on the scales of justice, altering the balance that is delicately crafted by the law. Empathetic judges exceed their role as part of the judicial branch and improperly take extraneous, nonlegal factors into consideration. That is why President Obama's judicial standard of empathy is problematic,
and why we should be cautious in deferring to his choices for the judicial branch.

Judge Sotomayor's speeches and writings reveal a judicial philosophy that bestows a pivotal role to personal preferences and beliefs in her judicial method--although Judge Sotomayor attempted to spin away her statements. At her confirmation hearing I had difficulty reconciling what she said at the hearing with statements she has repeated so often throughout the years. That is because the statements made at the hearing and those speeches and law review articles outside the hearing cannot be reconciled.


Since 1994, the judge has given a number of speeches where she responded to a remark by Justice O'Connor that a judge's gender should be irrelevant to judicial decisionmaking process. Judge Sotomayor said that she ``hope[d] that a wise Latina woman ..... would more often than not reach a better conclusion than a white male who hasn't lived that life.''

This statement suggests, very contrary to the Constitution, that race and gender influence judicial decisions and that some judges can reach a ``better conclusion'' solely on the basis of belonging to a particular demographic.

When questioned about this issue, Judge Sotomayor initially stood by her words, saying that they were purposefully chosen to ``inspire the students to believe that their life experience would enrich the legal system,'' and that it was merely their context that ``ha[d] created a misunderstanding.''

Even if that were the case, repeatedly misrepresenting to her audience one of the most fundamental principles of our judicial system demonstrates inappropriate and irresponsible behavior for a judge. However, Judge Sotomayor proceeded to contradict those very words by saying that she ``does not believe that any ethnic, racial, or gender group has an advantage in sound judging,'' and claimed that her criticism was actually agreeing with Justice [Page: S8781]
O'Connor's
argument, saying the words she used ``agree[d] with the sentiment that Justice Sandra Day O'Connor was attempting to convey.'' I fail to see how Judge Sotomayor can reconcile her views with those of Justice O'Connor because it is clear that they stand in direct contradiction to each other.

The judge continued to confuse us, claiming that hers and Justice O'Connor's words ``literally made no sense in the context of what judges do.'' Assuming that Judge Sotomayor truly does agree with Justice O'Connor, then I find it troubling that she doesn't recognize that it is important for judges to understand their gender and ethnicity should have no bearing on their judicial decisions.

Moreover, the judge contradicted herself again when she later attempted to brush aside these remarks, claiming that they were a ``rhetorical flourish'' and ``can't be read literally.'' However, if she truly believed that these words ``fell flat,'' why would she continue to use the same words on at least four more separate occasions?

Some of my colleagues claim that the significance of Judge Sotomayor's ``wise Latina'' statement has been exaggerated. Unfortunately, we are not concerned with just one statement. The judge has a record of freely articulating a judicial philosophy at odds with the fundamental principles of our legal system.

Justice Story once said that, without justice being impartially administered:



Neither our persons nor our rights nor our properties can be protected.



That is the end of Justice Story's quote.

In her opening testimony Judge Sotomayor appeared to agree with Justice Story, saying she seeks to strengthen ``faith in the impartiality of our justice system.'' However, that statement is contradicted by her long history of expressing skepticism toward judicial neutrality and impartiality. In at least four separate speeches Judge Sotomayor said that ``the aspiration to impartiality is just that--it's an aspiration.''

It is easy for a nonlawyer like me to become very cynical when I hear that. But when questioned about that statement, Judge Sotomayor argued that she ``wasn't talking about impartiality [being] impossible'' and tried to reconcile her views as ``talking about academic question.''

In other speeches, the judge also expressed skepticism with Judge Cedarbaum's belief that judges must transcend their personal sympathies and prejudices, saying that she ``wonder[ed] whether achieving that goal is possible in all, or even most cases.''

That is enhancing my cynicism.

At the hearing, Judge Sotomayor failed to sufficiently explain those troubling remarks. Instead, she departed from the clear meaning of her words, arguing that they were actually intended ``to make sure that one understood that a judge always has to guard against those things affecting the outcome of a case.''

Once again, her contradictory interpretation of her own words makes me question her sincerity and candor with our committee.

In another speech in a law journal article, Judge Sotomayor declared that she ``willingly accept[s] '' that judges ``must not deny the differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.''

So I am concerned that these words radically depart from the bedrock principle of judicial impartiality that judges swear to uphold when they take their oath of office.

When questioned about these words, Judge Sotomayor made the far-fetched claim that her words were actually ``talking about the very important goal of the justice system to ensure that personal biases and prejudices of a judge do not influence the outcome of the case.'' Once again, I fail to see how Judge Sotomayor can reconcile both of those statements.

Furthermore, her statement is especially concerning within the context of other ideas she expressed in the same ``Raising the Bar'' speech. That is her title of her speech, ``Raising the Bar.''

For example, Judge Sotomayor openly questioned whether ``ignoring our differences as women, men or even people of color, will do a disservice both to the law and to society.'' Reason to be cynical, once again. This is yet another example of an out-of-the-mainstream judicial philosophy. The majority of Americans understand that allowing physiological differences to influence judging is a disservice to the law and demonstrates a blatant lack of regard for the principle of blind justice.

At the hearing, the judge attempted to justify her words as simply part of an ``academic discussion.'' Contrary to the plain meaning of her words, she claimed that she was not encouraging or attempting to encourage the belief that ``personal characteristics'' and ``experiences'' should drive the result.

These excuses ring hollow and contradict other parts of the same speech where she declared, ``I accept there will be some differences in my judging based on my gender and my Latina heritage.''

Similarly and even more concerning, she expressed in that speech on at least five other occasions that ``I accept the proposition that a difference there will be by the presence of men and women, people of color on the bench, and that my experiences affect the facts I choose to see as a judge.''

When explaining those remarks at the hearing, the judge continued to display troublesome evasiveness, claiming that she ``did not intend to suggest that it is a question of choosing to see some facts or another.''

Taken together, I remain unconvinced that Judge Sotomayor's history of freely delivered speeches demonstrates an appropriate understanding of the importance of approaching the law neutrally and upholding judicial impartiality. I am also concerned that over the past 13 years the judge has articulated that judges play a role as a policymaker.

At a Duke University panel discussion she claimed that, ``The court of appeals is where policy is made.''

Likewise in her Suffolk University law review article, the judge embraced the notion that judges should encroach on the constitutional power of legislatures by changing the law to adapt to social needs. She lamented that ``our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting to the realities of ever-changing social, industrial and political conditions.''

And in the same article, the judge noted that ``a given judge or judges may develop a novel approach to a specific set of facts or legal framework that push the law in a new direction.''

I thought that was part of our checks and balances system of government. That is why we had a separate legislature, to make policy. Because if a Supreme Court Justice makes policy, they have got a lifetime position. You cannot vote them out of office, whereas if we make wrong policy, our constituents have an opportunity at every election to put us out on the street.

So not understanding the proper role of a Justice is a problem for me. Even more alarming is that the judge has, on multiple occasions, expressed her own personal role in shaping policy in the bench. When describing the role of judges in a November 2000 speech before the Litigators Club, the judge stated, ``Our decisions affect not only the individual cases before us, but the course of litigation and the outcomes of many similar cases pending. This fact has made me much more aware of the policy
impact of the decisions I have drafted or worked on.''

In at least two other speeches, the judge told her audience, ``I wake up each morning excited about the prospects of engaging in the work that fulfills me and gives me the chance to have a voice in the development of the law.''

These statements demonstrate either a lack of understanding or a blatant disregard for the proper constitutional role of judges. Rather than seriously addressing this aspect of her judicial philosophy at her confirmation hearing, the judge capriciously changed her views. She appeared to retract all of her previous statements by telling Senator Coburn that ``judges do not make law,'' and in responding to my questions about vacuums in the law by saying that judges are ``not creating law.''


I find these statements disingenuous because in her posthearing written responses, the judge endorsed her previous views by justifying judges who [Page: S8782]
``apply broadly written statues by filling in gaps in the laws according to their personal common sense.''

This is troubling because judges who fail to uphold their constitutional role and impose their own policy preferences undermine democracy and undermine our checks and balances system of government.

Also, I was disturbed by Judge Sotomayor's general lack of candor at the hearing. Throughout her testimony, she repeatedly contradicted statements she had openly and unequivocally expressed on numerous occasions from her own bench. Even the Washington Post characterized Judge Sotomayor's hearing testimony as ``less than candid,'' and ``uncomfortably close to disingenuous.''

That is not a Republican Senator making the statement, that is the Washington Post, one of the guardians of democracy, as the first amendment allows newspapers to be.

For example, despite her 7-year history of telling at least six different audiences that ``my experiences affect the facts I choose to see as a judge,'' and, `` I accept there will be some differences in judging based on my gender and my Latina heritage,'' she also told us, ``I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.''

Likewise, when I questioned her about whether it was ever appropriate for judges to allow their own identity politics to influence their judgment, the judge answered ``absolutely not.''

While I agree with her answer, it is still troubling and significant that it completely contradicts her previously expressed views. I find it interesting that she appears to have had a sudden confirmation conversion.

I am also concerned about Judge Sotomayor's involvement with the Puerto Rican Legal Defense and Education Fund and her denials that she did not work on matters in a substantive or policy role relative to controversial issues during her tenure at that organization.

During her supervision of this Defense and Education Fund, the organization took a number of radical positions on abortion, including the view that abortions on demand could not be restricted for any reason; that taxpayers should be required to pay for abortions; and that parents did not have the right to even be notified if their minor daughter was going to get an abortion.

I find it hard to believe that the chair of the litigation committee of the organization had no substantive or policy involvement in the formulation of these legal briefs.

Even when asked whether these positions were extreme and allowed an opportunity to disavow them, Judge Sotomayor refused to do that.

I also was dismayed that the judge was not straightforward about her philosophy toward the use of foreign law. In a recent speech before the ACLU of Puerto Rico, the judge advocated and justified American judges using such foreign law. She told her audience that, ``International law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.''

She went on to say, ``To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding ..... nothing in the American legal system stops us from considering those ideas.''

As examples of using foreign law to strike down American statutes, she favorably cited Roper v. Simmons and Lawrence v. Texas, saying the courts were using foreign law to ``help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.''

However, at the hearing, Judge Sotomayor contradicted herself saying, ``Foreign law cannot be used ..... to influence the outcome of a legal decision interpreting the Constitution or American law.''

Which Sotomayor, comparing those two quotes, is going to judge from the bench of the Supreme Court? In that same speech, Judge Sotomayor also openly disapproved criticisms by Justice Scalia and Justice Thomas on the use of foreign law saying she shared the ideas of Justice Ginsburg that, ``Unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases,

then we are going to lose influence in the world,'' and, ``foreign opinions ..... can add to the story of knowledge relevant to the solution of a question.''

However, at the hearing, Judge Sotomayor reversed herself, claiming that she ``actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to things American law permits you to.''

So, once again, comparing those two statements, which Sotomayor view is going to be used on the bench of the Supreme Court? Once again, either Judge Sotomayor's beliefs were extremely short lived, or she failed to openly present her true opinions during her hearings.

A few days after testifying that, ``Foreign law could not be used to interpret the Constitution and the statutes,'' Judge Sotomayor advocated her previous beliefs that, ``Decisions of foreign courts can be a source of ideas in forming our understanding of our own constitutional rights'' and ``to the extent that the decisions of foreign courts contain ideas that are helpful to that task, American courts may wish to consider those ideas.''

Supporters of Judge Sotomayor discount her controversial statements and writings made over the years as a sitting judge and urge us to look at her judicial record. So I have had the opportunity to do that, and am still not convinced. I participated in the confirmation hearing and listened to her discuss her cases. For the most part, Judge Sotomayor refused to give a clear answer to our questions and in the end left us with more questions than we had before the hearing started.

Most lawyers understand that hard cases say the most about a judge. And as we all know, the Supreme Court only takes hard cases. Yet those are the kinds of cases that raise the most concerns about the judge and what she will do if she is confirmed to the highest Court.

Statements she made at the hearing raise concerns that she will inappropriately create or expand rights under the Constitution. Further, some of her cases raise questions about whether she will impose her personal policy decisions instead of those of the legislative or executive branch.

Moreover, Judge Sotomayor's record with the Supreme Court is unimpressive. When the Supreme Court reviewed her work, it rejected her outcome 8 out of 10 times and disagreed with her analysis on another one of those cases. I am not sure a 1 in 10 record warrants elevation to the Nation's highest Court.

What is troubling to me is how Judge Sotomayor has handled cases of first impression or important constitutional issues that have appeared before her on the Second Circuit Court of Appeals. I am concerned that she dismisses cases with cursory analysis in order to obtain a politically desired result.

The firefighters case Ricci v. City of New Haven is a case that should not be overlooked in an examination of Judge Sotomayor's judicial philosophy. Judge Sotomayor admittedly is opposed to and has litigated against standardized tests because she believes they are racially biased. This is the background she brought to the Ricci case, which she dismissed without writing an opinion. But the fortunes of the firefighters changed when Judge Cabrenas discovered the case by reading the local newspaper.
Judge Cabrenas recognized that a detailed analysis of this case would serve a jurisprudential purpose and wanted the Second Circuit to reconsider it. The Second Circuit voted 7-6 not to reconsider this important case, with Judge Sotomayor casting the deciding vote. One has to question whether Judge Sotomayor allowed her
personal biases against standardized test to seep into her decisionmaking process. Although Judge Sotomayor continued her efforts to sweep this case under the rug, the firefighters, because Judge Cabrenas highlighted the importance of the case in a dissenting opinion, were able to justify appealing to the Supreme Court.

The Supreme Court issued an opinion which held that there was no ``strong basis in evidence'' to support the ruling made by Judge Sotomayor. All nine Justices rejected the legal reasoning applied by Judge Sotomayor's three judge panel. Justice Alito summarized the case best in his concurring opinion, [Page: S8783]
where he stated ``a reasonable jury could easily find that the City's real reason for scrapping the test results was not a concern about violating the disparate
impact provision of Title VII, but a simple desire to please a politically important racial constituency.'' As such, ``Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam.'' As to Judge Sotomayor's expressed empathy for ruling against the firefighters, Justice Alito wrote:


the dissent grants that petitioners' situation is ``unfortunate'' and that they ``understandably attract this Court's sympathy.'' But ``sympathy'' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.


At the hearing, I wasn't persuaded by Judge Sotomayor's claims that she followed precedent in reaching her decision. I also was not convinced with Judge Sotomayor's explanation about why she dismissed this case with no legal analysis. I was left with the impression that Judge Sotomayor either she didn't understand the importance of the claims before her, or she issued a ruling based on her own personal biases.

Some colleagues argue that her critics can only point to one controversial case over a 17-year career on the Federal bench. That is not quite accurate, because there are several of her decisions that raise concerns.

For example, Judge Sotomayor issued another troubling decision in Didden v. Village of Port Chester, where Mr. Didden presented evidence that local government officials attempted to extort him in exchange for not seizing his property. When Mr. Didden refused to be extorted, the Village took his property and gave it to another private developer. This case was on the heels of the Supreme Court's decision in Kelo v. City of New London, which held that the government is not ``allowed to take property
under the mere pretext of a public purpose, when its actual purpose is to bestow a private benefit.'' Yet Judge Sotomayor dismissed Mr. Didden's claim with a one paragraph opinion.

I asked Judge Sotomayor about the Didden case, but wasn't satisfied with her answers. First, she inaccurately characterized the Supreme Court's holding in Kelo. I was also troubled with her failure to understand that her decision expanded the ability of State, local, and Federal governments to seize private property under the Constitution. Further, she told me that she had to rule against Mr. Didden because he was late in filing his claim. Mr. Didden had 3 years to file his claim. He filed it
January 2004, 2 months after he was approached with what he classified as an extortion offer. Judge Sotomayor told us that Mr. Didden should have filed his claim in July 2002, before he was extorted and before he knew the city was going to take his property in November 2003. This is simply not a believable outcome, especially in a one paragraph opinion, where
it was never explained to Mr. Didden why the government could take his property. I specifically asked her how Mr. Didden could have filed his claim before he knew he had a claim. Judge Sotomayor did not answer this question directly, but the net result is, as Professor Somin stated, property owners in this situation will never be able to have their day in court:




the panel's ruling that [the plaintiffs] were required to file their claims before their property was actually condemned creates a cruel Catch-22 dilemma . . . If [the plaintiffs] had filed a Takings Clause claim before their property was condemned, it would have been dismissed because it was not yet ``ripe'')..... It is surely both perverse and a violation of elementary principles of due process to rule that the government can immunize unconstitutional condemnations from legal challenge simply
by crafty timing.



There might not be a decision more disturbing than Judge Sotomayor's summary dismissal in Maloney v. Cuomo. If this summary dismissal is allowed to stand, the right to bear arms as provided for in the second amendment will be eviscerated. Instead of carefully considering whether the District of Columbia v. Heller case properly left open the question of whether owning a gun is a fundamental right, Judge Sotomayor in one paragraph held that it is settled law that owning a firearm is not a fundamental
right. The Supreme Court noted in Heller that it declined to address the issue of whether owning a firearm was a fundamental right. At the hearing, I was concerned with Judge Sotomayor's explanation of her holding that the second amendment is not ``fundamental''
and her refusal to affirm that Americans have a right of self-defense. In my mind, and I think anyone who reads the second amendment, when the Supreme Court does consider this issue, we will find that Judge Sotomayor was once again on the wrong side of an opinion.

So based on her answers at the hearing and her decisions, writings and speeches, I am not convinced that Judge Sotomayor has the right judicial philosophy for the Supreme Court. I am not convinced that she will be able to set aside her personal biases and prejudices and decide cases in an impartial manner based upon the Constitution. I am concerned about Judge Sotomayor's dismissive handling of claims raising fundamental constitutional rights--I am not convinced that she will protect those rights,
nor am I convinced that she will refrain from creating new rights. For these reasons, I must vote against her nomination.
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