Senate Debate on Empathy
=====================================

Text From the Congressional Record

http://www.c-spanarchives.org/congress/?q=node/77531&id=9028224

Mr. VOINOVICH. Madam President, I rise today in support of the confirmation of Judge Sonia Sotomayor as an Associate Justice of the U.S. Supreme Court.

The role of the Senate in the nomination of a Supreme Court Justice is to give its advice and consent on the President's nomination. I believe it has been the longstanding tradition of this body that we are to judge whether an individual is qualified to serve based on the complete record of each nominee.

Once again, I compliment Senators Sessions and Leahy for the excellent job they have done in handling the confirmation hearings for Judge Sotomayor. The hearings were fair and enabled the American people to get a better understanding of what sort of Justice Judge Sotomayor will be. Equally important, these hearings were conducted with civility, allowing Senators to disagree without being disagreeable. This is something I would like to see more of in the Senate. Sadly, as some
of my colleagues have pointed out, the judicial nomination process has become so partisan that it seems to bring out the worst in the Senate, when it ought to bring out the best.

I believe the factors to be examined in determining whether a Supreme Court nominee is qualified include her education, prior legal and judicial experience, judicial temperament, and commitment to the rule of law. Based on my review of her record, and using these factors, I have determined that Judge Sotomayor meets the criteria to become a Justice of the Supreme Court. I didn't come to this determination lightly, and Judge Sotomayor has made statements that give me pause. However, after reviewing her judicial record and the comments made during the Judiciary Committee hearings, on balance, I believe she is fit to serve on our Nation's highest Court.

I am comforted by Judge Sotomayor's express rejection of then-Senator Obama's view that in a certain percentage of judicial decisions ``the critical ingredient is supplied by what's in the judge's heart and the depth and breadth of one's empathy.'' In answer to a question from Senator Kyl, Judge Sotomayor said:

I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law. The judge applies the law to the facts before that judge.



In addition to being fit for the bench, the story of Judge Sotomayor is the story of so many Americans who rose from humble beginnings to reach levels of achievement that would not be possible in any other nation.

It is sort of the story that reminds me of what is so unique and special about our Nation, that a young working-class Latina woman or the son of a first-generation Eastern European immigrant family can be nominated to the Supreme Court or be elected to serve his home State in this great Chamber.

During our private meeting, Judge Sotomayor and I were able to discuss this opportunity. What struck me is she is someone who understands what a great opportunity this is, as well as the great challenges that await her. While the Founding Fathers may have a disagreement with her on some of her legal views, I think they would be proud that judging individuals on their merit has endured as part of this great experiment.

As a number of my colleagues have already noted, Judge Sotomayor, through hard work, has risen from humble beginnings to now await confirmation to the Supreme Court. Judge Sotomayor excelled throughout her academic career. From the time at Blessed Sacrament School and Cardinal Spellman High School, where she was the valedictorian of her class, she has excelled in highly competitive environments. Like Justice Alito, she is a graduate of Princeton University and Yale Law School. Judge Sotomayor
attended Princeton on scholarship and graduated not only summa cum laude but also was the recipient of the prestigious Pyne Prize from that university. Judge Sotomayor went on to Yale Law School, where she served as an editor of the Yale Law Journal. Her academic record should serve as an inspiration to all that in a meritocracy, we all have an equal opportunity to rise to the top.

After her stellar academic career, Judge Sotomayor entered public service as a district attorney in New York, where her drive and basic fairness were well noted. This commitment to public service impressed me.

Judge Sotomayor not only succeeded in the public sector, she also worked her way up from associate to partner, practicing corporate law at a New York law firm. In private practice, Judge Sotomayor specialized in intellectual property and copyright law. Her rise from associate to partner in such a specialized field is a clear indication that the private sector recognized her merit and rewarded her for her skill and ability.

Judge Sotomayor returned to public service with her appointment to the district court, where she served for 6 years. I believe Judge Sotomayor's experience on the district court will be invaluable to the Supreme Court, where none of her colleagues have experience as a judge in a trial court. I hope her experience there will help shape her future opinions, particularly in procedural cases where many commentators have noted a need for rules that work in practice, not just in theory.

Judge Sotomayor's time on the trial bench was marked by opinions that set forth the facts and applied the law narrowly. Did you hear that? Her time on the trial bench was marked by opinions that set forth the facts and applied the law narrowly--exactly what one would want from a trial court.

In addition to district court experience, Judge Sotomayor has appellate court experience, over 10 years on the Second Circuit. I reviewed many of her opinions from her time on the Second Circuit, and while many were not opinions I would have offered, her opinions, as well, were within the legal mainstream. Judge Sotomayor's opinions, for the most part, were lengthy, workman-like, limited rulings, the sort of opinions that exhibit the judicial restraint one would hope for a Supreme Court Justice.


Given her academic and professional achievements, it is not surprising that the American Bar Association has given the judge its highest ratings when considering her for the Supreme Court.

While impressive in what she has overcome to reach this point in her career, her record is not without blemish. In particular, the one comment that gave me significant pause as to whether I would support her nomination is the now well-known statement by the judge that ``a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.'' Such a statement is repugnant to someone like me who has worked so hard
to reach a colorblind society where an individual's race or gender is not considered in judging a person's merit. The question I had to ask myself was, Is this comment an indication that Judge Sotomayor would reject the rule of law and blind justice to favor certain people on the basis of inappropriate criteria? After study of her judicial record, I have concluded it is not. Based on my review, Judge Sotomayor's decisions, while not always decisions I would render, are not outside the legal mainstream and do not indicate an obvious desire to legislate
from the bench. Furthermore, Judge Sotomayor recognized during her nomination hearings that this ``could be hurtful'' and was not reflective of how she would judge cases. Through my review and my staff's review of her cases, her testimony, and my conversations with the judge,
I have confidence that the parties who appear before her will encounter a judge who is committed to recognizing [Page: S8920]
and suppressing any personal bias she may have to reach a decision that is dictated by the rule of law and precedent.

I think I would be remiss in my discussion of the judge if I failed to address the Supreme Court's decision in the Ricci v. DeStefano case. By now, all my colleagues and many Americans are aware that the Supreme Court reversed the Second Circuit's decision in the Ricci case. The case involved a reverse-discrimination suit against the city of New Haven, CT.

Some opponents of Judge Sotomayor's confirmation have used this opinion to suggest that her legal philosophy is outside the mainstream of American jurisprudence and that her nomination should be rejected. I believe a review of the close decisions rendered by the various Federal courts, including the Second Circuit's 7-to-6 decision to refuse to rehear the case and the Supreme Court's 5-to-4 decision to reverse the Second Circuit, suggests this matter was, for a number of the judges who reviewed
the case, a close call. In other words, it was very close. For one to say she is outside the mainstream when these decisions were so close I think is really stretching things quite a bit. Nevertheless, I believe Judge Sotomayor and her fellow panel judges would have better served the public by issuing a more comprehensive decision regarding their logic in affirming the district court's decision in favor of the city of New Haven.

In closing, I wish to make a few remarks about the judicial confirmation process.

Judge Sotomayor is the third nominee to the Supreme Court to come before the Senate since I came to the Senate in 1999. For both Justice Roberts and Justice Alito, then-Senator Obama promoted an ``empathy standard'' to determine if he would vote for these nominees. Then-Senator Obama said:

The critical ingredient is supplied by what is in the judge's heart.

Such an analysis is no analysis at all. In fact, it flies in the face of the meritocracy in which Judge Sotomayor succeeded. All of us in this Chamber can examine the academic credentials of and prior judicial decisions authored by a nominee and determine whether he or she is qualified. We cannot examine and judge what is in the heart.

Let me be clear. If I applied Senator Obama's standard, I would not be voting for Judge Sotomayor, his nominee. The President was wrong. I think his standard makes the whole nomination process an exercise in partisan politics. We need less politics in the judicial selection process and the judiciary in general, not more. It has become too politicized in the last several years. It is something about which all of us should be concerned.

I urge all my colleagues to reject the Obama empathy standard--just as Judge Sotomayor rejected it, just as I am rejecting it--and return to a standard where it is the qualifications of the nominee we judge, not the politics or heart of that nominee.

Judge Sotomayor is not the nominee I would have selected if I were President, but making a nomination is not my role today. My role is to examine her qualifications to determine if she is fit to serve. Again, in reviewing her academic and professional record, taking into account her temperament and integrity, it is clear to me she is qualified to serve as the next Associate Justice of the Supreme Court.

Madam President, I suggest the absence of a quorum.