Senate Debate on Empathy
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.source - http://www.c-spanarchives.org/program/292014-1&start=5129

01:25:29  Sessions, JeffU.S. Senator ... JUDICIAL PRINCIPLES AND HAVE OPENLY REJECTED THE EMPATHY STANDARD. IN HIS RESPONSE TO A FOLLOW-UP QUESTION,...

 01:25:36  Sessions, JeffU.S. Senator ... GREENAWAY STATED THIS ABOUT THE CONTROVERSIAL EMPATHY STANDARD. CANNOT PLAY A ROLE IN A JUDGE'S CONSIDERATION...

 01:25:51  Sessions, JeffU.S. Senator ... BEFORE ME THAT AS A HUMAN BEING, I MAY HAVE EMPATHY FOR YOUR CLIENT, BUT AS A JUDGE, I HAVE NONE...

 01:26:00  Sessions, JeffU.S. Senator ... BECAUSE THAT IS NOT MY JOB. THE PURE EXERCISE OF EMPATHY IN DECISION MAKING WOULD LEAD TO UNSOUND AND...

01:26:21  Sessions, JeffU.S. Senator ... STATES WHEN HE SAID HE'S GOING TO LOOK FOR EMPATHY WHEN HE MAKES NOMINEES TO THE BENCH. WHEN YOU...
 01:26:31   Sessions, JeffU.S. Senator ... MAKES NOMINEES TO THE BENCH. WHEN YOU TALK ABOUT EMPATHY, IT'S RULELY CONTRARY TO THE -- IT'S REALLY...

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Mr. SESSIONS. Madam President, I wish to share a few thoughts on the nomination of Judge Joseph A. Greenaway to the Third Circuit Court of Appeals on which I think we will be voting later today. I look forward to supporting his nomination. He has a good record as a district court judge. I think almost all of my colleagues, if not all, will support him. But I wish to take a moment to correct the record regarding some allegations that have been made by my Democratic colleagues regarding the processing of this nomination.

Sometimes we have controversial nominees, such as Mr. Becker. And if anyone would care to listen to Senator ENZI's comments, they will see why there are legitimate concerns about that nomination. Some of the nominees are not controversial and should move forward at a steady pace for confirmation in the Senate. Most of the nominations that have been submitted for positions in the Federal Government in the Department of Justice and on the Federal courts have moved forward rapidly without controversy. If one is controversial, the Senate should take its time and give full consideration of it.

Last week my colleague from New Jersey accused the Republicans of ``objecting'' every time the majority leader tried to schedule a vote on Judge Greenaway. I have to say my colleagues are seriously misinformed and I am not happy to be unfairly criticized for holding up the nomination. Let me explain exactly what happened.

As Chairman LEAHY has acknowledged, the majority leader, Senator REID, did not seek Republican consent to proceed with this nomination on the floor of the Senate until 2 weeks ago, and that was late on a Friday afternoon. The Republicans were able to clear the nomination and allow it to move forward with a modest time agreement before a final vote and allow the kind of discussion that we are having today.

Ironically, the Judiciary Committee, however, was not even able to process Judge Greenaway's nomination to move forward with it, which was submitted to the Senate in June by President Obama. President Obama submitted the nomination in June, but the committee could not move forward with a vote until September. Why was that? The reason was one of the home State Democratic Senators down here complaining failed to send in their blue slip. Senator LEAHY is not going to move a nominee without the consent of the home State Senators--and I respect him for that. He is the Democratic chairman of the committee, but he has a policy, as his predecessors all had, that he is going to give the home State Senators the opportunity to approve a nominee before he even has a hearing in committee.

The nominee was delayed 4 months by a failure of the home State Senators--or at least one of them--to acknowledge their approval by returning what we refer to as a blue slip. After that occurred, the committee promptly moved forward with a hearing and unanimously voted for Judge Greenaway's nomination in October.

Today is the time the majority leader has chosen as the time he desired to bring it up for a vote. He could have brought it up in October, November, December, or January. He chose to bring it up now. I am not one who thinks it is my fault that it has not been brought up.

The same thing happened to Judge Beverly Martin to the Eleventh Circuit. She was unanimously approved by the committee and had the support of her home State Senators. Months went by before she got her vote. It was unanimous to confirm her. It wasn't anybody's fault but the Democratic leadership's fault.

My colleagues always complain about holding up nominees, and they themselves are not moving them in an expeditious manner. Sometimes the President is slow to make nominations. As a result, we get complaints that it is the Republicans' fault. It is just not.

If we have an objection--a serious objection--that should be respected, we should state it, and we should bring it to the floor and discuss the nomination, as is occurring with Mr. Becker.

Compare that to the unreasonable delays of judicial nominations that President Bush sought. For example, Shalom Stone was nominated for this very seat. The reason it is vacant and the reason it is being filled today is because Shalom Stone was blocked. Stone was nominated in July of 2007 and was basically pocket-filibustered by the Democratic majority. He never received a hearing in committee. He never even received a hearing in committee. His nomination, therefore, lapsed at the end of President Bush's term. That is how Judge Greenaway was nominated. [Page: S520] On average, President Bush's circuit nominees waited nearly a year for confirmation--a year on average for circuit court nominees.

As for Judge Greenaway, he, like many of President Obama's nominees, I am pleased to say, has openly rejected the empathy standard.

In his response to a followup question, Judge Greenaway stated this about the controversial empathy standard: Empathy cannot play a role in a judge's consideration of a case or in determining what the law means. I have told lawyers who appear before me that as a human being, I may have empathy for their client, but as a judge, I have none because that is not my job. The pure exercise of empathy in decisionmaking would lead to unsound and inconsistent decisions.

That is a solid statement of what I think most judges believe, Republicans and Democrats alike. But, unfortunately, it is not the philosophy stated by the President of the United States when he said he was going to look for empathy in nominees to the bench.

Empathy is contrary to the oath a judge takes, which states: I ..... do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me .....

That is the oath they take to be impartial. We need judges who are honorable, intelligent, capable, and who understand their role to enforce the laws as written and to be impartial as they carry out that duty.

People talk about their backgrounds, their experiences--what are they saying? They are saying that my background, my ethnicity, my religion, my rural or urban environment allows me to see things in a way that may be different and, therefore, I am empowered to bring those ideas, concepts, and philosophies to my decision-making process, which I suggest is very much akin to saying I believe I can bring my biases to the decisionmaking process. They are directly contrary to the American ideal of an impartial judge, a neutral umpire who calls balls and strikes without regard for which team they are for or not for.

These are lifetime appointments. We look at these nominations carefully. These nominees must demonstrate they will follow the plain meaning of the law and not allow their own personal biases and prejudices to influence their decisionmaking process.

Based on his testimony at the hearing, his assurances and answers to followup questions, I believe Judge Greenaway will do that. I am proud to support him as I have supported most of President Obama's nominees. But we do have a responsibility to analyze these nominees' records, to hold fair and rigorous hearings, to ask for additional time, if that is necessary, to ensure each nominee is given the scrutiny that Congress is required to give before the elevation to a lifetime appointment by which they are no longer subject to review by the people of our country. We allow them to be an independent branch, but we have to insist that they be independent and objective as they render their opinions.

I yield the floor.