Senate Debate on Empathy
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Text From the Congressional Record

http://www.c-spanarchives.org/congress/?q=node/77531&id=9027949


Leahy, Patrick [D-VT]
 
Begin 2009-08-05 10:01:30
End   10:07:18
Length 00:05:48
Mr. LEAHY. Mr. President, we began debate yesterday on this historic nomination of Judge Sonia Sotomayor to the Supreme Court. Senator Reid, Senator Feinstein, Senator Menendez, Senator Whitehouse, and Senator Brown gave powerful statements--powerful statements--in support of Judge Sotomayor's long record, a record that makes her a highly qualified nominee and a record that brought about her receiving the highest qualification possible from the American
Bar Association. I thank those Senators for their statements.

In the course of my opening statement yesterday, I spoke about the value of real-world judging. Among the cases I discussed were two involving the strip searches of adolescent girls. I spoke about how Judge Sotomayor and Justice Ginsburg properly--properly--approached those decisions in their respective courts.

Judge Sotomayor is certainly not the first nominee to discuss how her background has shaped her character. Many recent Justices have spoken of their life experiences as an influential factor in how they approach cases. Justice Alito, at his confirmation hearings, described his experience as growing up as a child of Italian immigrants saying:

When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

He was praised by every single Republican in the Senate for that.

Chief Justice Roberts testified at his confirmation hearing:

Of course, we all bring our life experiences to the bench.

Again, every single Republican voted for him.

Justice O'Connor echoed these statements when she said recently:

We're all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court. We have our life experiences ..... So that made me a little more [Page: S8789]
pragmatic than some other justices. I liked to find solutions that would work.

Justice O'Connor explained recently:

You do have to have an understanding of how some rule you make will apply to people in the real world. I think that there should be an awareness of the real-world consequences of the principles of the law you apply.

Just as all Democrats voted for Justice O'Connor, so did all Republicans.

I recall another Supreme Court nominee who spoke during his confirmation hearing of his personal struggle to overcome obstacles. He made a point of describing his life as:

One that required me to at some point touch on virtually every aspect, every level of our country, from people who couldn't read or write to people who were extremely literate, from people who had no money to people who were very wealthy.

And added:

So 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.

That is the definition of empathy. That nominee, of course, was Clarence Thomas. Indeed, when President George H.W. Bush nominated Justice Thomas to the Supreme Court, he touted him as:

A delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.

Let me cite one example of a decision by Justice Thomas that I expect was informed by his experience. In Virginia v. Black, the Supreme Court, in 2003, held that Virginia's statute against cross burning, done with an attempt to intimidate, was constitutional. However, at the same time, the Court's decision also rejected another provision in that statute. Justice Thomas wrote a heartfelt opinion, where he stated he would have gone even further.

He began his opinion:

In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred ..... and the profane. I believe that cross burning is the paradigmatic example of the latter.

He went on to describe the Ku Klux Klan as a ``terrorist organization,'' while discussing the history of cross burning, particularly in Virginia, and the brutalization of racial minorities and others through terror and lawlessness. Would anyone deny Justice Thomas his standing or seek to belittle his perspective on these matters? I trust not. Who would call him biased or attack him as Judge Sotomayor is now being attacked? I trust no one would. Real-world experience, real-world judging, and awareness
of the real-world consequences of decisions are vital aspects of the law. Here we have a nominee who has had more experience as a Federal judge than any nominee in decades and will be the only member of the U.S. Supreme Court with experience as a trial judge.

I look forward to this debate. One of the Judiciary Committee's newest members is now on the floor, Senator Klobuchar, the senior Senator from Minnesota. She has been a leader in support of this nomination. I see beside her the former Governor of my neighboring State of New Hampshire, then-Governor Shaheen, now Senator Shaheen. Both of them are going to speak, so I will take no more time.

I yield the floor, first, to Senator Klobuchar.