Senate Debate on Empathy
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Mr. UDALL of New Mexico. Madam President,

 I rise today to talk about Judge Sotomayor's experience, and I also want to talk about empathy.

In the period since President Obama nominated Sotomayor, some of her opponents have done their best to give empathy a bad name. I think that is a shame. It would be sad for us to confirm Sonia Sotomayor but allow her empathy to be discredited as a human emotion and a judicial asset.

During his confirmation hearings, Clarence Thomas said:

What I bring to this Court, I believe, is an understanding and the ability to stand in the shoes of other people across a broad spectrum of this country.

Justice Thomas's description of empathy captures one thing Sotomayor would bring to this Court: a diversity of experience and the ability to stand in the shoes of other people.

During her opening statement before the Judiciary Committee, Judge Sotomayor talked about her experience as a prosecutor in New York for legendary district attorney Bob Morgenthau. She said:


I saw children exploited and abused. I felt the pain and suffering of families torn apart by the needless deaths of loved ones. I saw and learned the tough job law enforcement has in protecting the public.

According to those who knew and worked with her, Judge Sotomayor was an excellent prosecutor. She knew the law, she studied the facts, and she did the hard work to keep people safe from crime. In this difficult job, she benefited from her empathy. Judge Sotomayor felt the pain and suffering of families destroyed by crime. She felt the difficulties law enforcement officers face, and she understood that her job was not just about enforcing the law, it was about ending the suffering crime brings.

During her testimony, Judge Sotomayor talked about the ``Tarzan'' case, a famous burglary and murder case she prosecuted. A quarter century later, she still feels deeply the impact of that crime. I was struck by her description of how the murder of a son devastated the lives of his mother and grandmother, how one act of violence produced ripples that destroyed a family and weakened a community, and how the family and the community demanded justice.

When I served as a Federal prosecutor, I learned that empathy is every bit as important as legal knowledge and good judgment. A prosecutor who reads the facts of a crime and cannot empathize with those involved is not just a strange person, he or she is likely to be an ineffective lawyer. A proper respect for the law demands a recognition that individuals involved in a legal dispute are not abstractions; they are sons, daughters, sisters, and brothers, men and women who deserve justice. Empathy
allows us to recognize that, and that is essential to the practice of law. It is also an essential quality for judges.

Some Members of this body have suggested that empathy is inconsistent with impartial judgment. I disagree. Judges must, first and foremost, apply law to facts. But this process is not a mechanical calculation; it requires attention to the human impact of legal decisions.

Legal reasoning that ignores [Page: S8656]
the human dimension risks inhuman outcomes to human problems. Law without empathy produces decisions such as Dred Scott and Plessy v. Ferguson. It gives you reasoned arguments and unreasonable results.

When the Supreme Court ruled in Dred Scott, its members were applying the law to the facts as they saw them. One fact they took for granted was that Dred Scott was so different as to be unworthy of legal protections. The Taney Court could not put themselves in Scott's shoes, and the result was such a rebuke to the values of this Nation that it helped drive us to civil war.

When the Court wrote in Plessy that ``the enforced separation of the two races [does not stamp] the colored race with a badge of inferiority,'' they were not misinterpreting the law. They just could not feel the sting of segregation. Or to put it another way, they failed to show empathy, and generations of Black citizens paid the price.

Of course, a judge with empathy must also determine with whom to empathize. One of my colleagues has argued that empathy for somebody is always discrimination against somebody else. Again, I disagree. I believe that justice is not a zero-sum game. Equal justice for minorities does not mean less justice for others. A judge who feels compassion for those who face the legacy of codified bigotry is not less able to sympathize with a White firefighter who has been denied a promotion. The law respects
the humanity of every individual. Judges can and should do the same.

Judge Sotomayor has explained that her experience has helped her to ``understand, respect and respond to the concerns and arguments of all litigants who appear before me.'' All litigants.

As a prosecutor, Judge Sotomayor sympathized with the victims of crime. But she could also look at a defendant and see a fellow human being--somebody who deserves fairness, if not freedom. As a judge, she has ruled for civil rights claimants, and she has ruled against them. She has ruled for prosecutors and for defendants. Her compassion has not led her to come down on one side or the other. It has helped her to be both wise and fair--to treat every individual with the respect he or she deserves.


President Obama has nominated a Supreme Court Justice with a wealth of both personal and professional experience. Her experience has given her the intelligence to understand the law and the wisdom to apply it.

But it has also given her something more. Judge Sotomayor has seen housing projects and Ivy League dorms. She has defended those whom society ignores and prosecuted those who ignore society's rules. At the trial and appellate level, she has seen the human drama of American law play out in countless ways.

This experience has given her compassion for the diverse experiences that make up the American experiment. She understands in a deep and personal way that we all deserve equal justice under law. I can think of no more important qualification for a Supreme Court Justice.

She has earned her right to serve on the Nation's highest Court. I look forward to supporting her confirmation.

Madam President, I yield the floor, and I suggest the absence of a quorum.