Senate Debate on Empathy
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2009-10-27 - Jeff Session on Judge Irene Cornelia Berger

Judicial empathy
http://judgepedia.org/index.php/Irene_Berger

In a 1991 interview with the Charleston Daily Mail, Berger talked about her support for judicial empathy. Despite her reputation as a tough prosecutor, she talked about her empathetic side as a prosecutor and as a judge. She stated: "People want to see people punished, and rightfully they should be. But on the other hand, you see people who didn't have a family support group and may be your age and they're going to the pen. You remember they are still human beings." [3]

Another basis for her belief on judicial empathy may be the personal tragedies that Berger faced in her early life. She endured losing a brother to an industrial accident, another brother who shot and killed his wife and served a prison term, and a sister and a nephew who were killed in a fire in Philadelphia. [3]

 

Mr. SESSIONS. Madam President, I rise to speak on President Obama's nominee to the district court for the Southern District of West Virginia, Judge Irene Cornelia Berger. The historic significance of her nomination should not be lost on anyone. If confirmed, she will be the first African American to serve on the Federal bench in the State of West Virginia. She has had a distinguished career. She has been a State judge for the last 15 years. Before that, she was a State prosecutor for 12 years and a lawyer for the Legal Aid Society. I enjoyed the dialogue we had during her confirmation hearing and was especially pleased to see her responses to the questions for the record. She indicated in those answers outright that she did not agree with the empathy standard President Obama has used, saying: A judge should apply the law to the facts of a case without being influenced by sympathy or empathy.

She further stated that it is never proper for a judge to indulge his or her own sense of empathy in deciding what the law means. I wholeheartedly agree and am pleased to be able to support her nomination. The President's nominations deserve deference, although we do have a constitutional responsibility to examine the nominees, to ask the tough questions, to support them when we can and to oppose them when that is the appropriate action.

I commend Chairman Leahy on the pace of his hearings. Last week, the committee held its 16th judicial nominations hearing. But I wish to set the record straight about a few things. At this point in his Presidency, President Bush had nominated 60 judges, but only 22 nominees had hearings. In contrast, President Obama has nominated only 23 judges, including a Supreme Court nominee, which took a great deal of our time, as it rightly should. Yet 16 of his nominees have received hearings.

The Senate Judiciary Committee is doing its job. We are processing nominees at a reasonable pace, in a fair and bipartisan manner. There are those who say that Republicans are slow-walking nominees. I suggest that is a preemptive accusation to complain about something they think might happen. It is not happening, in my view. The raw numbers show that. Those same individuals also claim that the vacancy rate on the Federal courts is higher now and, therefore, we need to confirm more judges than we did during President Bush's first 2 years in office. However, the need to fill vacancies does not undercut the responsibility to properly vet those lifetime appointments.

Furthermore, we can only process the nominees we have before us. There are currently 22 circuit court vacancies but only 9 nominees before the Senate. There are 75 district court vacancies and only 10 nominees before the Senate. This chart shows that. These are the vacancies in blue and the red represents the circuit court nominees. These are the only the nominations we have received so far.

To date, President Obama has announced a total of only 23 nominees, one of which was a Supreme Court nominee. By this time, the Bush administration had sent the Senate 60 nominees, almost three times as many.

Over the past few weeks, I have heard the chairman of our committee come to the floor and state that the pace of confirmations is not acceptable. I wish to point out a few numbers to those who now say Democrats confirmed a significant number of President Bush's nominees. As I told the chairman, I hate to get into this. We have been doing this for a number of years, but I am not going to remain silent while the record is distorted. We need to talk about perspective, and if we are going to continue to have tit-for-tat, I will be down here to explain the other side of the question.

President Bush had fewer nominees confirmed than any two-term President in modern history. President Clinton had 377 confirmed; President Bush only got 326. President Clinton was also able to confirm two Supreme Court nominees. Under the Bush administration, the Democrats held up qualified nominees for years in some cases, denying an up-or-down vote even though a majority of the Senators were ready and willing to confirm.

There are those who say the Republicans are filibustering nominees, and to them, I say that is not correct. A hold is not a filibuster. When a Member of this body has concerns about a nominee, they have a right to put a hold on that nominee. The majority leader has the prerogative to file cloture on that nomination. There were nominees that I have strongly opposed and have voted against, but I voted for cloture when the majority leader sought to bring up the nomination so the nominee would get an up or down vote. That is the way you overcome a hold.

Madam President, how much time do we have remaining?

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