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Senate Debate on Empathy
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http://www.c-spanarchives.org/congress/?q=node/77531&id=9028222
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Text From the Congressional Record |
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| Mr. DURBIN. Madam President, as a Member of Congress, there
are votes you cast that you remember for a lifetime. Recently, a new
Senator, Al Franken, came to my office the day after he was sworn in, and we
talked about his adjustment to the Senate. He talked to me about his concern
about the first three votes he cast in the Senate, that he was pushed in
quickly and had to make decisions and didn't have a chance to reflect as he
would have liked to reflect on those votes. I said to him that I understood that, but after he has been in the Senate for a while--or the House for that matter--and he has cast many votes, he would realize that some are more important than others. This is an important vote. It is not the most important vote a Member of the Senate can cast--a vote for a nomination of the Supreme Court. I would argue the most important vote you can [Page: S8916] cast is whether America goes to war because if the decision is made in the affirmative, as it has been, people will die. I can't think of anything more compelling than that vote. But this ranks a close second in terms of the impact it will have. These are lifetime appointments to the Supreme Court. The Supreme Court Justices on average serve 26 years, longer than most Members of Congress. The Supreme Court has the last word in America when it comes to our most significant legal issues. This High Court across the street, comprised of nine men and women, defines our personal rights as Americans to privacy and the restrictions the government can place on the most personal aspect of our lives and our freedom. It doesn't get any more basic than that. The Supreme Court decides the rights of workers, consumers, immigrants, and victims of discrimination. 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 govern the executive branch--the President--in time of war. In critical moments in American history, the Supreme Court has succeeded and failed our Nation. In the Dred Scott decision in the 1850s, the Supreme Court perpetuated slavery and led us to a civil war. In Brown v. Board of Education, in the 1950s, that court brought an end to the legal blessing on discrimination based on race. Because these issues were so important, and tomorrow's issues may be as well, we make our choices for the Supreme Court with great care. We obviously need Justices with intelligence, knowledge of the law, the proper judicial temperament, and a commitment to impartial and objective justice. More than that, we need Supreme Court Justices who understand our world and the impact their decisions will 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 these days. The Supreme Court has issued decision after decision in recent years that represent a triumph of ideology over common sense. The case of Ledbetter v. Goodyear Tire & Rubber Company is the best example of this troubling trend of the Court. In that case, the Supreme Court dismissed a claim of pay discrimination simply because the claim was filed more than 180 days after the initial discriminatory paycheck. But most employees in most businesses in America have no idea how much the person next to them is being paid, so it is often impossible to know you are a victim of pay discrimination until long after the fact, long after 180 days. The Supreme Court's Ledbetter decision defied common sense, the realities of the workplace, and a long record of earlier decisions. There was another case, Safford Unified School District v. Redding. A 13-year-old girl was strip-searched at her school based on a false rumor that she was hiding ibuprofen pills. At the oral argument before the Court in April, several Supreme Court Justices asked questions about the case that revealed a stunning lack of concern for the eighth grade victim. One of the Justices even suggested that being strip-searched was no different than changing clothes for gym class. 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. The majority of the Justices, nevertheless, ruled that school officials were immune from liability. These and other decisions demonstrate that the Supreme Court needs to understand the real world and the impact its decisions have on real people. I believe Judge Sonia Sotomayor will be such a Justice. One of my favorite memories of Judge Sotomayor's hearing was watching her mother's face glow with pride as Judge Sotomayor talked about the history of her family. She spoke about growing up in public housing, losing her father when she was 9 years old, and struggling to succeed against adversity, illness, and the odds. She talked about what a great impact her mom had on her life, and that her mom taught her what a friend was worth. She talked about earning scholarships to Princeton University and Yale Law School, serving as a prosecutor and a corporate litigator, and then being selected by President George H.W. Bush to serve the Federal judiciary and being promoted to a higher judicial office by President Bill Clinton. It is a rare occurrence for a Federal judge to receive appointments by Presidents of different political parties. Sonia Sotomayor received those and that reflects so well on her skill as a judge. Judge Sotomayor has served for more years as a Federal judge than any other Supreme Court nominee in a century and, if confirmed, she will be the only Justice on the current Supreme Court with actual experience on the district court and the trial court, the front line of our judicial system. For many who oppose Sonia Sotomayor, her life achievements and her judicial record aren't good enough. They have gone through 3,000 different court decisions that this woman has written or been part of. They have scoured through hundreds of speeches she has given. If you watched the hearing, they focused primarily on one case and one sentence in one speech. At Judge Sotomayor's hearing, Republican Senators mentioned the words ``wise Latina woman''--that one line in one speech--17 different times. Senator after Senator asked her, ``What did you really, really mean with those three words?'' Those of us who are Senators live in a world of daily decisions, speeches, and votes. If we vote in a way that is controversial, we ask the people to be fair and judge us on our life's work, not on a single vote. It is a standard we ask for ourselves. But for some Senators, it is not a standard they would give Judge Sotomayor when it comes to her decisions and life in public office. Members of Congress also live in a world of revised and extended remarks. We live in a world of jokes that aren't that funny, and verbal gaffes. Many want to condemn Judge Sotomayor for her ``wise Latina'' remark that she herself conceded was ``a rhetorical flourish that fell flat.'' I think some of her critics in the Senate are applying a double standard here. I pointed out at the hearing that those who read the ``wise Latina'' sentence should have kept reading, because a little further in that same speech, the judge noted that it was nine white male Justices on the Supreme Court who unanimously handed down the Brown v. Board of Education decision, and other cases involving race and sex discrimination. Judge Sotomayor made it clear at her hearing that she believes no single race or gender has a monopoly on good judgment. But her statements are not good enough for some of my colleagues. I hope that Senators would be wise enough themselves to look at her long record on the bench and not one line in one speech. Let's be honest. A great deal of concern about her nomination has to do with the issue of diversity. Why do we even seek diversity when it comes to appointments to the Federal judiciary? First, it is because we live in a diverse nation. We want every American to believe they have an equal opportunity to succeed. We want every American, Black, White, brown, male and female to know that our system of government is fair. We want all Americans to look at our Congress and our courts and feel there are leaders who can identify with the diversity of life experience in this great diverse Nation. Second, diversity on the Federal bench is important because different life experiences can lead to different perspectives. Does anybody believe there is a clear, objective answer to every case that comes before the Supreme Court? If they do, please explain to me why one-third of all rulings in that Court in the last term were decided by a 5-to-4 vote. Does anybody believe the Supreme Court's recent strip search case would have come out the same way if Justice Ginsburg, the only woman on the Supreme Court at this moment, had not helped her eight male colleagues to reflect on what it was like for a 13-year-old girl to be treated in such a humiliating fashion at her school? Does anybody believe that women judges have not helped their male colleagues understand the realities of sex discrimination and sexual harassment in the workplace? Study after study has shown that men and women on the [Page: S8917] bench sometimes rule differently in discrimination cases. That is why diversity is so important. This doesn't mean their rulings are based on personal bias. It simply means that Americans see the world through the prism of various experiences and perspectives. Our Supreme Court Justices should possess an equally rich and wide field of vision as they interpret the facts and the law. Criticizing Judge Sotomayor for recognizing this reality is unfair. The criticism of Judge Sotomayor for her position in the Ricci case, which involved the firefighters in Connecticut, is also unfair. Judge Sotomayor's position in that case followed past judicial precedents. At her nomination hearing, she offered clear explanations about the law as she saw it when she reached her conclusion, and about how her decision was fully consistent with the way the law has historically dealt with competing claims of discrimination. Her position in the Ricci case was supported by a majority of the members of her appellate court, a unanimous three-judge panel of her court, the district court, and by four of the nine members of the Supreme Court. Hers was not a radical, unreasonable position. I think we know that. When my colleague Senator Specter asked the firefighters themselves if they believed that Judge Sotomayor's ruling in the case was made in good faith, they said they had no reason to believe otherwise. Nor do I. To those who say Judge Sotomayor wouldn't have an open mind in race discrimination cases, look at her 17 years on the bench. Based on an independent study by Supreme Court scholar Thomas Goldstein, after looking at all 96 of her race discrimination cases, he found that she ruled in favor of the plaintiffs less than 10 percent of the time. There is no bias in her decisionmaking. The facts don't support that conclusion. There are two other issues I will address--foreign law and the second amendment. These issues are near and dear to the rightwing conservative base. With respect to foreign law, Judge Sotomayor stated repeatedly over and over, in question after question, that American courts should not rely on decisions of foreign courts as controlling precedent. But she said that in limited circumstances, decisions of foreign courts can be a source of ideas, akin to law review articles or legal treatises. She is hardly alone in her thinking on this. Justice Ginsburg took the same position and observed: ``I will take enlightenment wherever I can get it.'' This commonsense approach has been embraced by two conservative Supreme Court Justices appointed by President Reagan: William Rehnquist and Anthony Kennedy. Indeed, we cannot expect the rest of the world to adopt the democratic principles and fundamental freedoms we promote as a Nation, while at the same time saying we will never consider ideas developed in other countries. This is plain common sense. It is sad that some of my colleagues are in the thrall of small-minded xenophobes and don't appreciate that the march of democracy has reached many corners of the world and generated thoughtful reflection on our most basic values. On the issue of the second amendment, I was sorry to see a major lobby group in Washington, DC, the National Rifle Association, not only announce their opposition to Judge Sotomayor but also notify its members and colleagues that this vote is going to be scored against them on the annual legislative scorecard. This is the first time in its history that the NRA has taken a position on a Supreme Court Justice. Every citizen is entitled to his opinion, but it is unfortunate that the decision of this historic gravity has become a bargaining chip for lobbyists in Washington, and contributions in the next political campaign. What is worse, Judge Sotomayor has a record of honest reflection on the second amendment. Most of the gun-related criticism of Judge Sotomayor is focused on the Maloney case. But in that case, she came to the exact same conclusion as a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, based in Illinois. That three-judge panel was not a gathering of liberals. It featured three Republican appointees and two of the most conservative icons on the Federal bench, Judge Frank Easterbrook and Judge Richard Posner. They concluded that only the Supreme Court, not appellate courts, could overrule century-old Supreme Court precedents on whether the second amendment right to bear arms applies to the States. I realize the NRA and their Senate allies don't like that ruling. They wanted Judge Sotomayor to do what the Ninth Circuit did and overrule Supreme Court precedent. But in the Maloney case, Judge Sotomayor did what an appellate court should do, and she followed the law. I am pleased that not every conservative group joined the NRA's line of fire. I will mention some organizations and individuals who don't typically show up at Democratic party rallies but who support the judge: Kenneth Starr, a man who led the impeachment of President Clinton; Charles Fried, a conservative Republican who served as Solicitor General during the Reagan administration, also supports her confirmation, as do conservative columnists Charles Krauthammer and David Brooks. The U.S. Chamber of Commerce has endorsed her. In Illinois, the conservative Chicago Tribune said: In four days of testimony under often intense questioning, [Judge Sotomayor] handled herself with grace and patience, displaying a thorough knowledge of case law and an appreciation of her critics' concerns. The result was to reinforce a strong case that she will make a good Supreme Court justice and deserves Senate approval. I want to acknowledge that, as of this moment, eight Republican Senators have stepped forward and announced they are going to support Judge Sotomayor. I am heartened by their courage and their support of this fine judge. The last issue I would like to address is that word ``empathy.'' Judge Sotomayor's critics have twisted and tortured this word in an effort to discredit her and raise doubts about her objectivity. Empathy is simply the ability to see another person's point of view. It is the ability to put yourself in their shoes. That is it. It doesn't mean exercising bias or favoring a particular side. The judge's critics are wrong to conflate these concepts. I believe, and President Obama believes, that Judge Sotomayor's life experience--from her days growing up in public housing, to her service as a high-powered lawyer representing large corporations--will give her a unique ability to understand the interests of all the parties that come before her for decisions of the Supreme Court. It gives her an ability to understand different perspectives and points of view. That is what empathy is all about. Judge Sotomayor had demonstrated this quality in 17 years on the bench. It explains why she enjoys such a reputation for fairness and thoughtfulness. In the 220-year history of the United States, 110 Supreme Court Justices have served under our Constitution, and 106 of them have been white males. We have had two women Justices, Sandra Day O'Connor and Ruth Bader Ginsburg. Two of them have been African Americans, Thurgood Marshall and Clarence Thomas. In life, and in our Nation, if you want to be first, you have to be the best. Sonia Sotomayor's and inspirational background clearly meet that higher standard. What a great story it is for America that President Obama has given us a chance to consider Sonia Sotomayor to serve as the first Hispanic woman on the Supreme Court. Judge Sotomayor should not be chosen to serve on the Court because of her Hispanic heritage. But those who oppose her for fear of her unique life experience do no justice to her or our Nation. Their names will be listed in our Nation's annals of elected officials one step behind America's historic march forward. I urge my colleagues to support and vote yes on the nomination of Sonia Sotomayor to be the next Justice of the Supreme Court of the United States. |