Senate Debate on Empathy
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<PREV SOTOMAYOR NOMINATION NEXT>

Text From the Congressional Record

http://www.c-spanarchives.org/congress/?q=node/77531&id=9027587


McConnell, Mitch [R-KY]
 
Begin 2009-08-04 10:11:06
End   10:16:35
Length 00:05:29
Mr. McCONNELL. Mr. President, the Senate will soon begin debate on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court. Before that debate begins, I wish to make a few observations.

First, I thank the chairman and the ranking member of the Judiciary Committee, along with their respective staffs, for conducting what can only be described as a dignified and respectful hearing. I know it was gratifying to them, as it was to me, to hear Judge Sotomayor say that every single Senator who had promised to give her the opportunity to explain her views had kept that promise. It was equally gratifying to hear Senators DURBIN and SCHUMER describe the hearings as respectful
and fair.

As I have often said, our goal in the Senate should be to disagree without being disagreeable. I think we hit the mark during the hearings on Judge Sotomayor, and the Judiciary Committee should be commended for it. As we begin final consideration, our goal should be the same: Those who support the nomination will make their case, those who oppose it will make theirs, and then we will vote, fulfilling our constitutional responsibility with the seriousness and the deliberation the American people
expect.

Over several weeks, I have outlined my concerns about the nominee in some detail. Once the hearing was over, I said that those concerns had only multiplied. But the primary reason I will not support this nomination, as I have already said, is because I cannot support the so-called empathy standard upon which Judge Sotomayor was selected and to which she, herself, has subscribed in her writings and rulings.

As I have said, the empathy standard is a very fine quality. And I have no doubt that Senator Obama, now President Obama, had very good intentions when he made the case for a so-called empathy standard as a Senator, a candidate, and now as President. But when it comes to judging--when it comes to judging--empathy is only good if you are lucky enough to be the person or group for whom the judge in question has empathy. In those cases, it is the judge, not the law, which determines the outcome.
That is a dangerous road to go down if you believe, as I do, in a nation not of men but of laws.

Judge Sotomayor has impressed all of us with her life story, but if empathy is the new standard, then the burden is on nominees such as she who are chosen on that basis to demonstrate a firm commitment to equal justice under the law. On the contrary, Judge Sotomayor has openly doubted the ability of judges to adhere to this core principle, and she has even doubted the wisdom of them doing so.

In her writings and in her speeches, Judge Sotomayor has repeatedly stated that there is no objectivity or neutrality in judging. Let me say that again. Judge Sotomayor has repeatedly stated that there is no objectivity or neutrality in judging. She has said her experiences will affect the facts she chooses to see as a judge. 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 judicial impartiality as an ``aspiration'' that cannot be met even in most cases. She has even questioned whether a judge trying to be as fair as possible in applying the law does a disservice both to the law and to society. These statements suggest not just a sense that impartiality is not possible but that it is not even worth the effort.

Nothing could be more important in evaluating a judicial nominee than where they stand on the question of equal justice. As I have said, Americans expect one thing when they walk into a courtroom--whether it is traffic court or the Supreme Court--and that is equal treatment under the law. [Page: S8711]
Americans have accepted serious ideological differences in Supreme Court nominees over the years. But one thing they will never, ever tolerate 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.

Judge Sotomayor is certainly a fine person with an impressive story and a distinguished background. But a judge must be able to 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 fundamental test. It is a test that Judge Sotomayor does not pass.

I yield the floor.
END