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

 

<PREV EXECUTIVE SESSION NEXT>

Text From the Congressional Record


McConnell, Mitch [R-KY]
 
Begin 2009-08-06 14:27:18
End   14:42:00
Length 00:14:42
Mr. McCONNELL. Mr. President, once again I wish to thank the chairman and the ranking member of the Judiciary Committee, Senator Leahy and Senator Sessions, and their staffs, for conducting a dignified and respectful hearing. From the beginning of the process, I assured Judge Sotomayor that Republicans would treat her fairly. At the end of the process, I can say with pride that we kept that commitment.

This particular nominee comes before us with an impressive and a compelling life story. Yet the question we must ask ourselves today is whether we believe Judge Sotomayor will fulfill the requirements of the oath that is taken by all Federal judges to administer justice without respect to persons; that is, to administer justice evenhandedly.

President Obama asked himself a different question when he was looking for a nominee. The question he asked is whether that person has the ability to empathize with certain groups. And as I have said, empathy is a fine quality. But in the courtroom, it is only good if a judge has it for you. What if you are the other guy? When he walks out of the courthouse, he can say he received his day in court. He can say he received a hearing. But he can't say he received justice.

At her hearings Judge Sotomayor was quick and even eager to repudiate the so-called empathy standard. But her writings reflect strong sympathy for it. Indeed, they reflect a belief not just that impartiality is not possible, but that it is not even worth the effort.

Judge Sotomayor's record of complex constitutional cases concerns me even more. Because in Judge Sotomayor's court, groups that didn't make the cut of preferred groups often found they ended up on the short end of the empathy standard, and the consequences were real.

One group that didn't make the cut in Judge Sotomayor's court were those who needed the courts to enforce their first amendment rights to support candidates for political office free from government interference. She is free to express her personal opinions on this issue, as she did when she wrote that merely donating money to a candidate is akin to bribery.

But as a judge she was obligated to follow clear Supreme Court precedent. And when it came to this issue, she followed her political beliefs instead, voting not to correct her circuit's clear failure to follow the Supreme Court precedent in this area of the law.

Ultimately, the Supreme Court, in a 6-to-3 opinion authored by Justice Breyer, corrected this error by her circuit on the grounds that it had failed to follow ``well-established precedent.''

Another group that didn't make the cut were those who need the courts to protect them from unfair employment preferences. As a lawyer, she advocated for--and, in fact, helped plan--lawsuits that challenged civil service exams for public safety officers. And as a judge, she kicked out of court--with just six sentences of explanation and without any citation of precedent--the claims of a group of firefighters who had been unfairly denied promotions they had earned. This past June, the Supreme Court
reversed her ruling, making her 0 for 3 this term, with all nine Justices finding that she had misapplied the law.

Gun owners didn't make the cut, and they haven't fared well before Judge Sotomayor either. She has twice ruled the second amendment isn't a fundamental right and thus doesn't protect Americans when States prevent them from bearing arms. And here too, she didn't even give the losing party's claims the dignity of a full treatment. In one case, she disposed of the party's second amendment claim in a one-sentence footnote. In the other, she did it with a single paragraph.

Property owners weren't on the list either, and they too haven't fared well in Judge Sotomayor's court. In an important fifth amendment case--the amendment that protects against the government taking private property--Judge Sotomayor broadened even further the government's power, a ruling which one property law expert called ``one of the worst property rights decisions in recent years.''

And her ruling in this case fit an all-too-familiar pattern: she kicked the aggrieved party's serious constitutional claims out of court in an unsigned, unpublished, summary order, with only a brief explanation as to why.

These important cases illustrate the real-world consequences of the empathy standard, in which judges choose to see certain facts but not others, and in which it's appropriate for judges to bring their personal or political views to bear in deciding cases. Lieutenant Ben Vargas, one of the firefighters who did not fare well under the empathy standard, may have put it best. Speaking of himself and the other plaintiffs in that case, he said,


We did not ask for sympathy or empathy. We asked only for evenhanded enforcement of the law, and ..... we were denied that.




Lieutenant Vargas understands what most other Americans understand and what all of them expect when they walk into a courtroom: that in America, everyone should receive equal justice under the law. This is the most fundamental test for any judge, and all the more so for those who would sit on our Nation's highest court, where a judge's impulses and preferences are not subject to review. Because I am not convinced that Judge Sotomayor would [Page: S8944]
keep this
commitment, I cannot support her nomination.

Mr. President, does our side have time left, I would ask?