Senate Debate on Empathy
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Mr. WHITEHOUSE. Mr. President, I am honored to join my distinguished colleague from New Jersey here today on the Senate floor to speak in support of the confirmation of Judge Sonia Sotomayor as the next Associate Justice of the U.S. Supreme Court.

I had the privilege to sit on the Judiciary Committee for her confirmation hearing, and I join all of my committee colleagues on both sides of the aisle who have complimented Chairman Leahy for a very well-run hearing. I was proud to vote for Judge Sotomayor in the Judiciary Committee, and I will be proud to vote for her confirmation here on the Senate floor.

Judge Sotomayor's remarkable education and professional qualifications, her commitment to public service, her uncontroversial 17-year record on the Federal bench--longer than any nominee in 100 years--her responsiveness and patient judicial temperament at the hearing, all confirm to me her pledge that she will respect the role of Congress as representatives of the American people; that she will decide cases based on the law and the facts before her; that she will not prejudge any case but listen
to every party that comes before her; and that she will respect precedent and limit herself to the issues that the Court must decide; in short, that she will use the broad discretion of a Supreme Court Justice wisely. [Page: S8743]


I applaud those of my colleagues who have acknowledged that Judge Sotomayor falls well within the mainstream of the American legal profession. At the same time, it is disappointing that so few Republican colleagues have been willing to recognize her clear qualifications for our highest Court. The nearly unanimous party-line opposition offered by Republicans in committee and here on the floor raises serious concerns whether some of my colleagues would ever be willing to vote for anyone outside
of the Federalist Society. To my Republican colleagues in opposition, I ask: What Democratic nominee would you vote for, if not Judge Sotomayor, with her vast experience, her commitment to the rule of law, proven indisputably over 17 years, her remarkable credentials, and her extraordinary moving American life story?

Unfortunately, Judge Sotomayor seems to be walking proof that conservative political orthodoxy is now their confirmation test, masked as concerns about judicial activism. Many of my Republican colleagues unfairly ignore her long record to base criticisms on strained interpretations of a few routine and appropriate circuit court opinions and a few remarks taken out of context. Those criticisms feel, quite frankly, like the criticisms of someone who is determined to find fault with a nominee.

Take, for example, the New Haven firefighters case. The per curiam opinion in Ricci was based on controlling second circuit and Supreme Court precedent. The sixth circuit took the same approach in a similar case arising in Memphis. The role of a circuit court is to follow existing precedence of the Supreme Court and the circuit court. That is what the Ricci per curiam did. The Supreme Court may have reversed, but it did so 5 to 4 on the basis of an entirely new test it created. It is absurd to
call Judge Sotomayor an activist for following existing precedent. If you want a judicially conservative opinion, the Ricci per curiam is just that.

The decision in Maloney was also properly conservative in a judicial sense. It approaches with caution a newly minted and narrowly enacted constitutional right whose extension to the States would upset generations of practice and experience by sovereign States regulating guns within their borders. A seventh circuit panel, with two very prominent conservative judges on it, correctly did exactly the same thing. A ninth circuit panel reached a different conclusion, and then that decision was vacated
by the circuit to reconsider that case en banc.

Rather than engaging in a serious inquiry of Judge Sotomayor's fitness for the Supreme Court, many of my colleagues have made this nomination into a referendum on whether the newly minted right to bear arms should be incorporated against the States for the first time in our Nation's history. This is doubly unfair. First, Judge Sotomayor could not answer questions at her hearing that would suggest how she would rule in later cases. That is inappropriate. Second, it is inappropriate to try to force
on a judge a particular political view as the price of admission to her judicial office.

Criticisms of a few stray lines in Judge Sotomayor's various speeches are equally perplexing. Judge Sotomayor's long and noncontroversial 17-year judicial record should allay any concerns about those remarks, but so should the context of those speeches themselves. The ``wise Latina'' comment we have heard so much about came in a speech that argued how important it is for judges to guard against bias and to be aware of their own prejudices. Is it not better and truer to admit that we all have prejudices we must manage than to pretend that White males form some sort of ideal cultural baseline that has no biases?

Senator Specter said it well at the committee vote. ``There is nothing wrong with a little ethnic pride and a desire to encourage her law student audience.'' Maybe we should try to put ourselves in their shoes. Perhaps, with a little empathy ourselves, it might be easier to understand how a profession and a judiciary dominated by White males might look to those young law students, and how important a little encouragement to them might be that their experiences might give them something valuable to contribute; that they are not the exception; that they are welcome and fully a part of our society, and that they bring something valuable not only to the profession but, one day, perhaps, even to the judiciary.

In sum, my Republican colleagues' criticisms of Judge Sotomayor appear to be grounded in conservative political idealogy rather than legitimate concern that Judge Sotomayor is not fit to serve on the Supreme Court, grounded in a desire for more of the rightwing Justices who in recent years have filled out a conservative wing on the Supreme Court. That wing has marched the Court deliberately to the right in the last few years, completely discrediting the Republican claim that judges are mere ``umpires.''
 

Jeffrey Toobin is a well-respected legal commentator, particularly focusing on the Supreme Court. He has recently reported:

In every major case since he became the Nation's 17th Chief Justice, Roberts has sided with the prosecution over the defendant, the State over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. And is it a coincidence that this pattern has served the interests and reflected the values of the contemporary Republican Party?

Some coincidence. Some umpire. The phrase ``liberal judicial activism'' is now conservative speak for any outcome the far right dislikes. They did not use it when the conservative block of the Court announced, by the barest of a 5-to-4 margin, an individual right to bear arms that had gone unnoticed by the Supreme Court for the first 220 years of its history. If that is not an activist decision, the term has no meaning. It is just activism that conforms with a deliberate Republican strategy of many years duration to pack onto
America's courts proven conservative judges who will deliver the political goods they seek.

Setting aside all this politics, we should also never forget, never overlook the historic role that judges play in protecting the less powerful among us.

We should always appreciate how a real-world understanding of the real-life impact of judicial decisions is a proper and necessary part of the process of judging. Judge Sotomayor's wide experience, I hope, will bring her a sense of the difficult circumstances faced by the less powerful among us--the woman on the phone, shunted around the bank from voice mail to voice mail for hours as she tries to find someone to help her avoid foreclosure for her home; the family struggling to get by in the neighborhood where the police only come with raid jackets on; the couple up late at night at the kitchen table after the kids are in bed sweating out how to make ends meet that month; or the man who believes a little differently or looks a little different or thinks things should be different. If Justice Sotomayor's wide experience gives her empathy for those people so that she gives them a full and fair hearing and seeks to understand the real-world impact of her decisions on them, she will be doing nothing wrong--nothing wrong by the measure of history, nothing wrong by the measure of justice. Experience, judgment, wise use of discretion, and a willingness to stand against oppression have always been the historic hallmarks of a great judge.

As to experience, Justice Oliver Wendell Holmes famously explained: The life of the law has not been logic: it has been experience. The felt necessities of the time the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms
and corollaries of a book of mathematics.

As to judgment, Justice John Paul Stevens has observed: [T]he work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment--a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision.  As to discretion, Justice Benjamin Cardozo wrote:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at [Page: S8744]
will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ``the primordial necessity of order in the social life.'' Wide enough in all conscience is the field of discretion that remains.

And, as Alexander Hamilton explained in the Federalist Papers, courts were designed to be our guardians against ``those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people ..... and which ..... have a tendency ..... to occasion ..... serious oppressions of the minor party in the community.'' Those oppressions tend to fall on the poor and voiceless. But as Hamilton noted, ``[c]onsiderate men, of every description ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day.'' We should not discard the wisdom of centuries.

Experience, judgment, discretion, and protection from oppression--the standard for judges of Hamilton, Holmes, Cardozo, and Stevens. History stands with them. And thoughtful people will note that empathy is a common thread through each of these characteristics.

Why might empathy matter? When might it make a difference? Take, for example, the history of the Colfax massacre.

Go back to Sunday, April 13, 1873 when a gang of White men murdered more than 60 Black freedmen in Colfax, LA. Some were burned in a courthouse where they had taken refuge; others were shot as they fled the burning courthouse; others were taken prisoner and then executed. U.S. Attorney James Roswell Beckwith determined to prosecute white citizens involved in the Colfax Massacre--not a popular call in those days. The case was tried before a U.S. District Judge William B. Woods, who determined that rule of law should prevail in his district. Predictably, polite White society was outraged. It took notable human empathy in that place and time to see the massacre of the Black freedmen as a crime, and to contemplate trying White men for the murder of Black men. The case was brought as one of the first applications of the Federal Enforcement Act, implementing the Constitution's new 14th amendment, so there was wide room for judicial discretion in that uncharted area of law--no ``balls and strikes'' here. District Judge Woods assured a fair trial, but he also was prepared to honor Congress's desire that outrages upon the Black community should be punished as crime. He had sufficient empathy with the widows and children of the slain freedmen to take seriously their need for vindication, and he had sufficient courage to face the scorn and anger of the White community.

Another judge was involved, U.S. Supreme Court Justice Joseph P. Bradley, who under the procedural rules of the time ``rode circuit'' for Louisiana, and could sit in on trials. And sit in he did. He had no sympathy for the former slaves, and little regard for Congress's intent to punish the abuse of freedmen. Disagreeing from the trial court bench with Judge Woods, Justice Bradley found repeated technical faults with the indictments, took a restricted view of the authorities of the 14th amendment, dismissed the charges, and released the defendants to flee, on low bail, pending an appeal.

The U.S. Supreme Court upheld its colleague Bradley's opinions, thereby gutting the 14th amendment and the Enforcement Act for a generation, and a wave of murder and violence by Klansmen and White League members, emboldened by de facto immunity from prosecution, swept the South. Reconstruction was vitiated in those weeks. Justice, for the murder of a Black man by a White, departed the South for nearly a century.

History and the law ultimately proved district Judge Woods correct, but how much turned on the character of two judges: one who had the empathy to see Black men as victims of crime, and the courage to outrage White opinion by allowing the trial of White community leaders, before a mixed jury no less; the other a judge who valued the status quo, and recoiled from any shock to proper White opinion and authority; indeed, who was the reflection of that proper opinion.

That is what we mean by empathy, and while the divisions in our society are less today, there are still people who feel voiceless, whose voices a judge must be attuned to hear; there are still Americans who come to court bearing disadvantages that have nothing to do with the merits of their case. Empathy to look through those disadvantages to see the real merits of the case, even when it is unpopular or offends the power structure is the hallmark of a great judge. The words of Hamilton, Holmes, Stevens, and Cardozo I have quoted display it as history; the contrasting approaches of the two judges after the Colfax massacre display it as justice.

My Republican colleagues' misunderstanding of judicial history has led to a missed opportunity for bipartisan support of a highly qualified and moderate judge who falls well within the mainstream of American legal thought. We could be celebrating the first Latina justice of the Supreme Court as a great American achievement. Instead we are having to defend basic principles of American history from assault from the right. I hope that, as the future looks back on this day, it will be the historic
nature of this nomination that will be remembered, not the strange and strained efforts to impose right-wing political orthodoxy on the courts that defend our constitutional rights.

I look forward to Judge Sotomayor's service as an excellent Supreme Court Justice. I will vote proudly for her confirmation.

Mr. President, I ask unanimous consent to have printed in the Record a letter of support of Justice Sotomayor from New York City's mayor, Michael Bloomberg.

I also ask to have printed in the Record a letter of support for Judge Sotomayor from former FBI Director Louis Freeh.

I yield the floor.

There being no objection, the material was ordered to be printed in the Record, as follows:




THE CITY of NEW YORK,

OFFICE of THE MAYOR,

New York, NY. July 7, 2009.
Hon. PATRICK J. LEAHY,
Chairman, Judiciary Committee, U.S. Senate
Washington, DC.
Hon. JEFF SESSIONS,
Ranking Member, Judiciary Committee,
U.S. Senate,
Washington, DC.

DEAR CHAIRMAN LEAHY AND SENATOR SESSIONS: As Mayor of the largest city in the country and the place where Judge Sonia Sotomayor has spent her career, I strongly support President Barack Obama's nomination of Judge Sotomayor to serve as an Associate Justice of the United States Supreme Court.

One of my responsibilities as Mayor is to appoint judges to New York's Family and Criminal Courts, which gives me the opportunity to assess the qualifications of many judicial candidates. Over the past seven and half years, I have interviewed candidates for more than 40 judicial seats and have, like you, developed a strong sense of the qualities that will strengthen our justice system. Based on this experience, I have great confidence that Judge Sotomayor's rulings demonstrate her knowledge of
the law, objectivity, fairness, and impartiality, which are essential qualities for any judge. Just as important, she possesses the character, temperament, intelligence, integrity, and independence to serve on the nation's highest court, and her well-respected record of interpreting the law and applying it to today's world is perhaps the best indication of her exceptional ability as a judge.

Judge Sotomayor's impressive 30-year career has given her experience in nearly all areas of the law. As an Assistant District Attorney in Manhattan, she earned a reputation as an effective prosecutor. As a Judge in the Southern District of New York, she established a record that amply supported her appointment to the Second Circuit And in her current role as a Judge in the U.S. Court of Appeals for the Second Circuit, she is admired for her knowledge and understanding of legal doctrine, having
taken part in over 3,000 panel decisions and authored close to 400 opinions. In each role, she has served the public with integrity and diligence.

Judge Sonia Sotomayor is an outstanding choice for the United States Supreme Court, and I stand firmly behind her candidacy.

Sincerely,

Michael R. Bloomberg,
Mayor. [Page: S8745]

--

FREEH SPORKIN & SULLIVAN, LLP,

July 9, 2009.
Hon. Patrick Leahy,
Chairman, U.S. Senate Judiciary Committee, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, U.S. Senate Judiciary Committee, Washington, DC.

Dear Senators: It is with tremendous pride in a former colleague that I write to recommend wholeheartedly that you confirm Sonia Sotomayor to be an Associate Justice of the Supreme Court. Judge Sotomayor has the extensive experience and the judicial qualities that make her eminently qualified for this ultimate honor and I look forward to watching her take her place on the Nation's highest Court.

I first met Judge Sotomayor in 1992 when she was appointed to the United States District Court for the Southern District of New York. As the then newest judge in the storied Courthouse at Foley Square in lower Manhattan, we followed the tradition of having the newly-minted judge mentored by the last-arriving member of the bench. Despite the questionable wisdom of this practice, I had the privilege of serving as Judge Sotomayor's point of contact for orientation and to help her get underway as
she took on a full, complex civil and criminal case docket.

A few weeks of ``New Judges School'' sponsored by the Administrative Office of the Courts does not in any meaningful way begin to prepare a new District Judge for the unrelenting rigor of conferences, motions, hearings, applications, trials and other miscellaneous duties--including appeals from the Bankruptcy Court--which instantly construct what often appears to be an overwhelming schedule for a new judge. To make matters more challenging, when I was a new judge the Court followed the tradition
of allowing the active judges to select a fixed number of their pending cases for reassignment to the new arrival.

Into this very pressurized and unforgiving environment, where a new judge's every word, decision, writing and question is scrutinized and critiqued by one of the harshest, professional audiences imaginable, Judge Sotomayor quickly distinguished herself as a highly competent judge who was open-minded, well-prepared, properly demanding of the lawyers who came before her, fair, honest, diligent in following the law, and with that rare and invaluable combination of legal intellect and ``street smarts.''


As I spent a lot of time reading her opinions, observing her in the courtroom conducting the busy, daily docket of a trial judge, and discussing her cases and complex legal issues, I was greatly impressed with how quickly she mastered and employed the critical skills of her new position.

To me, there is no better measure by which to evaluate a judge than the standards of the former Chief Judge of the U.S. District Court of Minnesota and nationally renowned American jurist, Edward J. Devitt. A former Member of Congress and World War II Navy hero, Judge Devitt was appointed to the federal bench by President Eisenhower and became one of the country's leading trial judges and teacher of judges. A standard Jury Instruction textbook (Devitt and Blackmun) as well as the profession's
most coveted award recognizing outstanding judges, the Devitt Award, bears his name.

I recently had the honor of participating in the dedication of a courtroom named for Judge Devitt. The judges and lawyers who spoke in tribute to Judge Devitt very ably and insightfully described the critical characteristics which define and predict great judges. But rather than discuss Judge Devitt's many decisions, particular rulings or the ``sound bite'' analyses which could have been parsed from the thousands of complex and fact specific cases which crossed his docket, they focused on those
ultimately more profound and priceless judicial qualities which ensure that Article Three judges with lifetime tenure uphold the Rule of Law with fairness, courage and justice for all.

Teaching hundreds of new American judges over several decades, Judge Devitt liked to use a ``nutshell version'' for emphasis and because he always got right to the heart of things. So he offered three rules:

I. ``Judging takes more than mere intelligence;

2. Always take the bench prepared. Listen well to all sides, stay open as you are listening and recognize any pre-conceptions that you may bring to the matter. Then, make a decision and never look back;

3. Call them as you see them.''

Sonia Sotomayor would have gotten an ``A plus'' from the ``Judge from Central Casting,'' as Judge Devitt was often called by his peers.

A great part of Judge Devitt's legacy is his famous ``Ten Commandments to Guide the New Federal Judge,'' which he gave me, and which I passed on to Judge Sotomayor:

1. ``Be Kind;

2. Be Patient;

3. Be Dignified;

4. Don't Take Yourself Too Seriously;

5. Remember That a Lazy Judge Is a Poor One;

6. Don't Be Dismayed When Reversed;

7. Remember There Are No Unimportant Cases;

8. Don't Impose Long Sentences;

9. Don't Forget Your Common Sense; and

10. Pray For Divine Guidance.''

In my brief role as Judge Sotomayor's ``second seat'' on the Southern District trial bench, I probably spent more time with her in those first months than any other member of our great Court. And I was delighted to observe and conclude that she exhibited all the desired characteristics that Judge Devitt prescribed for his ``students.''

Since 1992 I have followed Judge Sotomayor's career on the bench both as a trial judge and later as a member of our Second Circuit Court of Appeals. Along with my former colleague judges and lawyers, we have seen her grow and mature into a truly outstanding judge, who embodies all of Judge Devitts's wise counsel and the most prized characteristics of judicial courage, integrity, intelligence and fair adjudication of the Rule of Law.

Judge Sotomayor's early demonstration of judicial restraint, appropriate deference to the other two Branches of government and her fidelity to upholding the rule of law can perhaps best be seen in a 1998 case. Sitting as a District Judge, she carefully heard a minimum wage lawsuit and, in recognition of the limits of judicial power, she relied on the statutory text and precedent to reach her decision: ``The question of whether such a program should be exempted from the minimum wage laws is a
policy decision either Congress or the Executive Branch should make.''

Judge Sotomayor will bring great legal as well as judicial experience to the Supreme Court and will serve there with distinction in the fine tradition of Judge Devitt. As the only ``trial judge'' on the current Court, she will import an immense wealth of experience which comes uniquely from judges who preside over cases with witnesses, juries, real time procedural and evidence rulings and the challenging (and unpredictable) dynamics of a trial courtroom. It will also be a very valuable asset
for the Court to have a former criminal prosecutor (it has only one now) who was widely respected by judges, defense attorneys and law enforcement officers.

Most importantly, Judge Sotomayor will continue to exemplify the ``Devitt Rules'' we want all our judges to follow, and the courage, integrity and experience required to protect the Rule of Law. The efforts by some to discredit the Judge are far afield from the eminent jurist whom I know, and I hope that no Senator will be misled or motivated by partisan rancor to vote against someone who so fully fits the measure of what we should want in a Supreme Court justice. I hope you will consider her
nomination expeditiously so she is confirmed and prepared to participate in the Court's first session on September 9, 2009.

Sincerely,
LOUIS J. FREEH.