Senate Debate on Empathy
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Full Empathy Narrative in Text.

(x) 2005-09-22 - Senate - Barack Obama

 The problem I face--a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts--is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases--what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce
clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled--in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
 

2006-01-26 - Obama on Alito in ?Senate


2007-07-17 - Obama @ Planned Parenthood
I said, well look, that’s absolutely true and in most Supreme Court decisions, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?


 

(x) 2009-05-01 - Obama on Souter retirement - Press conference

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President.  So I will seek somebody with a sharp and independent mind and a record of excellence and integrity.  I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.  I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.  I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
 

(  ) 2008-01-22 - Senate - Christopher Smith - couldn't find video

On Sunday, Senator Barak Obama criticized Americans for both our moral deficit and what he called our ``empathy deficit'' and called upon us to be our brothers' and sisters' keepers.

 Can Senator Obama not see, appreciate or understand that the abortion culture that he and others so assiduously promote lacks all empathy for unborn children, be they black, white, Latino or Asian, and is at best profoundly misguided when it comes to their mothers? Why does dismembering a child with sharp knives, pulverizing a child with powerful suction devices more powerful than 20 to 30 times the average cleaning machine, vacuum machine, or chemically poisoning a baby with any number of toxic chemicals fail to elicit so much as a scintilla of empathy, moral outrage, mercy or compassion by America's liberal elite?

Abortion destroys the very life of our ``brothers and sisters,'' and the proabortion movement is the quintessential example of an ``empathy deficit.''

2009

(x) 2009-05-03 - Meet The Press - Arlen Specter - Empathy
Empathetic. Is that code to you for an activist judge?

SEN. SPECTER: Well, we look to the court to interpret the Constitution and the statutes passed by Congress and not to make laws. There is no doubt that the standards and values in our country have shifted, as Cardozo said in the Palko case years ago. There was a time when equal protection meant that the Senate galleries were segregated, and we know how foolish that would be in modern day life. So there's no doubt that there are changes with the times. But if you talk about empathy, you may be talking about something which is, which is broader. But we'll have to test the nominee on that. Listen, the job of the United States Senate is to ask firm, really tough questions to find out whether the nominee has an open mind, whether the nominee respects the supremacy of the Constitution, whether the nominee will look to Congress to establish public policy. And there are going to be some empathetic factors, but basically we're a nation with a rule of law.

(x) 2009-05-05 - Senate - Mitch McConnel
As a candidate for President, he said that his criteria for a judicial nominee would be someone who would empathize with particular parties or particular groups. This viewpoint was evident again last week when, in describing a good nominee, the President seemed to stress empathy over and above a judge's role of applying the law without prejudice.

The problem with this philosophy is that it arises out of the misguided notion that the courts are simply an extension of the legislative branch rather
than a check on it. Americans do not want judges to view any group or individual who walks into the courtroom as being more equal than any other group or individual. They expect someone who will apply the law equally to everyone, so everyone has a fair shake.

Americans expect, and should receive, equal treatment whether they are in small claims court or the Supreme Court. And any judge who pushes for an outcome based on their own personal opinion of what is fair undermines that basic trust Americans have always had and should always expect in an American court of law.

The President is free to nominate whomever he likes. But picking judges based on his or her perceived sympathy for certain groups or individuals undermines the faith Americans have in our judicial system. So throughout this nomination process, the impartiality of judges is a principle that all of us should strongly defend.

In a nation of laws, the question is not whether a judge will be on the side of one group or another. It is not ``whose side,'' the judge is ``on,'' as a senior Democrat on the Judiciary Committee framed the issue during another debate over a Supreme Court nominee. The issue is whether he or she will apply the law evenhandedly.

(x) 2009-05-06 - Senate - Ted Poe

Mr. POE of Texas. Mr. Speaker, the President has made it clear that his pick for Justice of the Supreme Court will be different than all others who have previously served. He has said that the new Justice ``will have empathy and understanding for people,'' ``that the person realizes justice isn't about some abstract law theory,'' but how decisions ``will affect the daily reality of people's lives.''

He has also seemed to indicate he wants someone that isn't so indoctrinated with constitutional thought or beholding to the technicalities of the Declaration of Independence.

The new President has said he wants a Justice with the ``heart to recognize what it's like to be a young teenager mom, empathy to understand what it's like to be poor or a minority, gay or disabled or old.''

Then he also said this week, ``The quality of empathy of understanding and identifying with people's hopes and struggles is an essential ingredient for arriving at just doctrines and outcomes.''

Sounds like, to me, a good career move for Dr. Phil or someone like him that deals only with emotions.

And why is this comment about outcome so important? Does the President think the new Justice should reach certain social activist decisions by any means necessary, regardless of the law and the evidence? Seems like the President wants a Justice that will treat people differently, depending on who they are, rather than treat them all equally.

I thought judges were to make judgments based on facts and the law; at least that's what I thought and did for 22 years as a judge in Texas. Judges are not to make decisions based on their own personal, social or political agenda for the masses.

Also, I haven't heard the President mention that it's an important requirement for him that the new Justice follow the spirit and the letter of the Constitution.

And, of course, rumors abound that the new pick will be a woman, someone from the President's hometown of Chicago, a minority, a liberal, or one with political loyalty to the President. Only the President knows this answer.

Also, does the President only want a politically correct judge or Justice that correctly judges the Constitution? It appears to me that the new Justice should be qualified as a constitutional scholar that believes in upholding the sanctity of the words of the Constitution, rather than someone that just has empathy or a social or political agenda they want impose on the whole Nation.

The new Justice should seek justice first and foremost, because justice is what we do in this country. After all, here is the oath the Supreme Court Justice will take: ``I solemnly swear that I will administer justice without respect to persons and do equal right to poor and rich and I will faithfully and impartially discharge and perform all the duties incumbent upon me as a Justice of the Supreme Court--under the Constitution and laws of the United States. So help me God.''

( x ) 2009-05-13 - Senate - Roland Burris 

Some will warn that any Obama nominee will be prone to political bias and judicial activism. We must be wary as we evaluate such claims. Certainly, it is right to oppose any jurist who would attempt to legislate from the bench. The Supreme Court must be bound by law and the weight of precedent. Justices must respect our Constitution and remain unbiased on all matters.

But too often, we mistake insensitivity for impartiality. We cannot afford to choose a clear record at the expense of clear judgment. Decisions such as Brown v. the Board of Education display compassion, not activism. Roe v. Wade stood on principle, not on ideology. Some call it activism; I call it courage. Our judicial history is full of these independent decisions, and we should demand such strength and integrity from every jurist we place on the bench. After all, without any kind of courage, the Supreme Court itself would hardly exist as we know it. Marbury v. Madison was a landmark ruling that forever altered the role of the Court. It established judicial review and laid the groundwork for almost every decision in the last two centuries.  We must oppose jurists who would overreach, but we would be well served to find a candidate with the integrity to draw on his or her God-given sense of empathy and personal life experiences.

Above all, we must ensure that he or she will bring diversity to the Supreme Court. I encourage the President to give serious consideration to naming a woman of color to the High Court. Diversity of race and gender, diversity of background, diversity of thought, and diversity of judicial philosophy--all of these qualities would bring new views and experience to the Supreme Court and would encourage healthy debate among its members, bringing new perspective to each ruling.

Any experienced attorney--and there are many of us in this Chamber--knows that finding legal truth is not easy. Few issues are black and white. Judges must sift through shades of gray to make informed decisions. Legal truth arises from this dialog, from the collision of different perspectives and opinions. In shaping the Supreme Court, we seek to build debate, not consensus.

Justice David Souter, throughout his 18-year tenure on the Supreme Court, has consistently given a thoughtful voice to the principles of fairness, equality, and the importance of precedent. He has always been a consistent advocate for ``a philosophy of all philosophies'' which values fresh ideas, unique perspectives, and inclusive debate. As this brilliant jurist moves into retirement, we must embrace his independent legacy by confirming someone who will bring diversity, empathy, and a powerful
intellect to the bench. In short, we must ensure that he or she is worthy to be placed among the highest legal minds in the United States of America.

(X) 2009-06-09 - Senate - Jon Kyl
That is important in this particular case because of the standard the President laid down for his nominees which strongly suggests something beyond deciding the law. In 5 percent of the cases, as he said, there is no precedent, there is no legal mechanism for deciding how the case should come out. You have to base it on other factors. Everybody is well aware of some of the factors this particular nominee has talked about and the President has talked about--the empathy, the background, the experience
in other matters.

The question is, in reading these opinions, do you find a trend of deciding cases on something other than the law, potentially the making of law in this particular case? And even if, as the leader said, you have to review 76 cases a day, that is only the decisions she has participated in or the opinions she has written or joined in.

So the Senator from Alabama came here and said: We do not need judges with empathy. That word has been stretched in many different directions. But if empathy means we do not need judges who understand the reality of the workplace, if empathy means we would say to Lilly Ledbetter: Sorry, you missed it, girl, you had 6 months to file that lawsuit from the first act of discrimination, the first paycheck--you missed it, and you are out of luck--if empathy would say that is not a fair or just result,

I want judges with empathy. I want them to know the real world. I want them to know the practical impact of the decisions they make. I want them to follow the law. I want them to be fair in its administration. But I do not want them to sit high and mighty in their black robes so far above the real world that they could not see justice if it bit them. I think that is what empathy brings--someone who is at least in touch with this real world.

(x) 2009-06-17 - Senate - Jeff Sessions
A number of groups and activists believe the Court is sort of their place and that social goals and agendas they believe in that are not likely to be won at the ballot box, they have an opportunity to get a judge to declare it so. We have the Ninth Circuit Court of Appeals en banc ruling that the Pledge of Allegiance to the Constitution is unconstitutional because it has the words under God in it. Actually, that has never been reversed. It has been vacated in a sense because the Supreme Court
rejected it on, I think, standing grounds. But at any rate, those are the things that are out there. It is not in the Constitution. This is a bad course for America.

If the judiciary heads further down that path, then I think we do have dangers because we are actually weakening the Constitution. How can we uphold the rule of law if those who weigh the scales have the power to tip them one way or the other based on empathy, their feelings or their personal views? How can we curb the excess of Federal power if we allow our courts to step so far beyond the limits of their legitimate authority? How can the least among us depend on the law to deliver justice,
to protect them, to steadfastly protect their liberties, if rulings are no longer objective and if a single judge has the power to place his or her empathy above the law and the evidence?


(  ) 2009-06-17 - Richard Durbin
So the Senator from Alabama came here and said: We do not need judges with empathy. That word has been stretched in many different directions. But if empathy means we do not need judges who understand the reality of the workplace, if empathy means we would say to Lilly Ledbetter: Sorry, you missed it, girl, you had 6 months to file that lawsuit from the first act of discrimination, the first paycheck--you missed it, and you are out of luck--if empathy would say that is not a fair or just result,

I want judges with empathy. I want them to know the real world. I want them to know the practical impact of the decisions they make. I want them to follow the law. I want them to be fair in its administration. But I do not want them to sit high and mighty in their black robes so far above the real world that they could not see justice if it bit them. I think that is what empathy brings--someone who is at least in touch with this real world.
 

(x) 2009-06-17 - Senate - Patrick Leahy talk

When justice Brandies, one of the giants of the supreme court was nominated to the high court he had to overcome severe anti-Semitism, significant opposition. The commentary at the time was questions about the Jewish mind, how its operations are complicated by altruism. Does that sound a little bit like an attack on empathy? [laughter] of course, I would mention that the opposite of empathy is indifference. Do we really want that in a justice?
 

(x) 2009-06-18 - Whitehouse ACS panel

As members of the Senate Judiciary Committee, my colleagues and I have the opportunity to wrestle with some of the most important constitutional issues facing our country. The nomination of a new Supreme Court Justice - itself an historic event - and the hearings that follow inevitably raise such questions. As you would expect, the nomination of Judge Sotomayor to replace Justice Souter has raised questions about the role of the Supreme Court, and judges generally, in "keeping faith with the Constitution."

Inevitably, critics have unleashed an avalanche of innuendo, and even falsehoods, meant to weaken the case for Judge Sotomayor's confirmation. Some have walked back from the worst of what's been said - the charge that she is a racist, for example - but troubling undercurrents remain. These suggest that Judge Sotomayor's life experience is somehow unhelpful to the judgment she would bring to the Supreme Court, or that nominees are activists because they have, to quote President Obama, "empathy." This merits a response, because it is harsh, narrow-minded, and a historic to contend that a rich life experience and natural empathy are at odds with the wise exercise of judicial discretion that is the longstanding tradition underlying the American system of law.

First, as we all know, discretion is at the heart of the judicial role, at all levels of the court system. I hardly need to remind a room full of lawyers that the common law traditions of the Anglo-American system stand on the exercise of judicial discretion. Our common law is an accretion over generations of individual exercises of judgment and discretion, focused and refined through due deference to precedent. It is the architecture of judge-made law we live with to this day. As a result of this heritage, our legal system bears the imprint of the experience and wisdom of generations of judges. As Justice 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.

...

Central to the American legal tradition is the need for judges, and particularly Supreme Court Justices, with the good judgment to exercise discretion wisely. Right-wing critics of the administration have latched on to President Obama's description of that good judgment as "empathy." Even the ranking member of the Judiciary Committee, Senator Sessions, recently suggested that President Obama's use of the word "empathy" indicates a belief "that a judge should use his or her personal feelings about a particular group or issue to decide a case."

I respectfully suggest that's a bit of a stretch. The President looked for in his nominee, and found in Judge Sotomayor, the life experience necessary to understand how a court's legal decisions affect the everyday lives of regular people. Do critics of Judge Sotomayor's nomination really object to this principle? Should we not prefer a nominee who has common sense, who can appreciate how American laws affect different citizens, and who can empathize with the various parties who come before the court, rich and poor, strong and weak? If reaching correct outcomes were as simple as plugging a few factors and elements into a computer, we wouldn't need nine Supreme Court Justices. Appellate judges sit in panels of three, or five, or seven, or nine, because we know that a broad range of perspectives and experience makes for better judgment. As Judge Sotomayor correctly explains, judges "must not deny the differences resulting from experience and heritage but [should] attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

Compare that rich and candid consideration of the interaction between experience and judicial judgment with the facile analogy that my Republican colleagues have grown fond of: that judges are mere "umpires" who call "balls and strikes." Of course, that analogy is mistaken.

First, lest we forget, Republican nominees have themselves recognized that a broad life experience makes for a better Justice. Less than four years ago, Samuel Alito, then a judge on the Third Circuit, explained that his personal background and experience enriched his judgment in legal cases. He said this:

[W]hen a case comes before me involving, let's say, someone who is an immigrant - and we get an awful lot of immigration cases and naturalization cases - I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.

Chief Justice Roberts himself, who raised the "umpire" metaphor at his confirmation hearing, embodies the weakness of the analogy. Writing in the New Yorker, Jeffrey Toobin recently described a pronounced ideological predisposition in Chief Justice Roberts.

In every major case since he became the nation's seventeenth 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.

..

Congress had to step in after the infamous Ledbetter decision that mangled congressional intent, gutted important protections of Title VII, and reversed years of judicial practice. As Justice Ginsburg observed in her telling dissent, the decision ignored both the practical realities of the day-to-day workplace and the history and nature of discrimination on the basis of sex. As Justice Ginsburg noted, as a result of the lack of understanding and empathy with those in the workplace, the Court "ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose."

....

In conclusion, American courts bring justice to the American people, in significant part because of the discretion we entrust to our judges and justices. Broad and diverse life experiences can make for better judgment and truer justice, and we should celebrate a nominee who would bring these qualities to the bench.

Indeed, is Judge Sotomayor's life experience as a wise Latina woman, or President Obama's concern for judicial empathy, really the issue? Or does that stated concern reveal more about the critics than about the judge and the President? Does it not perhaps reveal an impatience with any world view that has not been groomed in corporate boardrooms, scrubbed by the Federalist Society, cosseted by privilege and exclusion, and comforted by the status quo? Our world, I think, is bigger than that, and our Constitution must be sized to fit that larger world. If Sonia Sotomayor represents a part of that larger world, even if she takes some points of view outside their comfort zone, that may be the very best argument for her nomination. The world is big enough, the Constitution is broad enough, and the Court should be diverse enough, for her to find a place on it.

( - ) 2009-06-23 - Gibbs  - (press secretary) not of interest

(x) 2009-06-23 - Senate - Jeff Sessions
As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say--to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does--President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.

So I think that is the impartial ideal. That is the ideal of the lady of justice with the scales and the blindfold, which we have always believed in in this country and which has been the cornerstone of American jurisprudence.

 

(x) 2009-06-23 - Senate - Mitch McConnell
Madam President, this morning I would like to turn my attention to the nomination of Judge Sonia Sotomayor to the Supreme Court and more specifically to the so-called empathy standard that President Obama employed in selecting her for the highest Court in the land.

The President has said repeatedly that his criterion for Federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for President, and again as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. Based on a review of Judge Sotomayor's record, it is becoming clear to many that this is a trait he has found in this particular nominee.

Judge Sotomayor's writings offer a window into what she believes having empathy for certain groups means when it comes to judging, and I believe once Americans come to appreciate the real-world consequences of this view, they will find the empathy standard extremely troubling as a criterion for selecting men and women for the Federal bench.

A review of Judge Sotomayor's writings and rulings illustrates the point. Judge Sotomayor's 2002 article in the Berkeley La Raza Law Journal has received a good deal of attention already for her troubling assertion that her gender and ethnicity would enable her to reach a better result than a man of different ethnicity. Her advocates say her assertion was inartful, that it was taken out of context. We have since learned, however, that she has repeatedly made this or similar assertions.

Other comments Judge Sotomayor made in the same Law Review article underscore rather than alleviate concerns with this particular approach to judging. She questioned the principle that judges should be neutral, and she said the principle of impartiality is a [Page: S6908]
mere aspiration that she is skeptical judges can achieve in all or even in most cases--or even in most cases. I find it extremely troubling that Judge Sotomayor would question whether judges have
the capacity to be neutral ``even in most cases.''  ... 

I don't believe a judge should rule based on empathy, personal preferences, or political beliefs, but if any case cried out for empathy--if any case cried out for empathy--it would be this one. The plaintiff in that case, Frank Ricci, has dyslexia. As a result, he had to study extra hard for the test--up to 13 hours each day. To do so, he had to give up his second job, while at the same time spending $1,000 to buy textbooks and to pay someone to record those textbooks on tape so he could overcome
his disability. His hard work paid off. Of 77 applicants for 8 slots, he had the sixth best score. But despite his hard work and high performance, the city deprived him of a promotion he had clearly earned.

Is this what the President means by ``empathy''--where he says he wants judges to empathize with certain groups but, implicitly, not with others? If so, what if you are not in one of those groups? What if you are Frank Ricci?


(x) 2009-06-23 -- Bob Menendez - no empathy directly but some relavant
On top of that, Judge Sotomayor's personal background is rich with the joys and hardships that millions of American families share. Her record is proof that someone can be both an impartial arbiter of the law and still recognize how her decisions will affect people's everyday lives.

I think it says something that the worst her ideological opponents can accuse her of is being able to understand the perspective of a wide range of people whose cases will come before her.
 

(x) 2009-06-24 - Senate - Orrin Hatch
Our constitutional rule of advise and consent requires us to determine whether she is qualified for this position by looking at her experience and, more importantly, her judicial philosophy.

President Obama has already described his understanding of the power and role of judges in our system of government. He has said he will appoint judges who have empathy for certain groups and that personal empathy is an essential ingredient for making judicial decisions. Right off the bat, President Obama's vision of judges deciding cases based on their personal feelings and priorities is at odds with what most Americans believe. A recent national poll found that by more than three to one, Americans  reject the notion that judges may go beyond the law as written and take their personal views and feelings into account.

Judge Sotomayor appears to have endorsed this subjective view of judging. In one speech she gave several times over nearly a decade, she endorsed the view that there is actually no objectivity or neutrality in judging, but merely a series of perspectives. She questioned whether judges should even try to set aside their personal sympathies and prejudices in deciding cases, a view that seems in conflict with the oath of judicial office which instead requires impartiality.

(x) 2009-06-24 - Senate - Sam Brownback
I am also deeply concerned that Judge Sotomayor will bring this radical agenda to the Court.

Judge Sotomayor has given speeches and written articles promoting judicial activism. The President who appointed her said judges should have ``the empathy to recognize what it's like to be a young teenage mom; the empathy to understand what it is like to be poor or African-American or gay or disabled or old,'' and that difficult cases should be decided by ``what is in the Justice's heart.''

While I think it is admirable to have empathy, a Justice and a person who sits on the bench is to decide this based on the law. That is what they are to decide it upon, not an interpretation or rewriting of the law.

The President's view of the role of a Judge on the Court

is not shared by Justices Marshall or Frankfurter, nor is it the view of Hamilton and the drafters of the Constitution.

The oath that all Supreme Court Justices take says:



I will administer justice without respect to persons, and do equal right to the poor and to the rich.

That is the oath they take. The Justice is to be blind and just to hear the case and decide it based on the facts and what the law is and say what the law says, not what they wish it to be nor what is in their heart. It is to be blind and it is to hold these and to weigh these equally and fairly to determine the truth and to determine the outcome in the case.

The President is asking his nominees to ignore, in essence, their oath. I fear Justice Sotomayor is all too eager to comply.

In her writings, Judge Sotomayor has rejected the principle of impartiality and embraces a rather novel idea that a Judge's personal life story should come into play in the courtroom.

 

(x) 2009-07-07 - Senate - Jeff Sessions
In 2005, then-Senator Obama explained that 5 percent of cases, he believes, are determined by ``one's deepest values and core concerns ..... and the depth and breadth of one's empathy.'' He means a judge's personal core concerns, values, and empathy.

Well, according to the President, in 5 percent of the cases where issues are close, that is acceptable. I think we must draw from his statement that it is acceptable for judges to not set aside their personal beliefs, not discard personal bias, not dispense with their personal experiences as they make rulings, as they decide cases, which is what judges do.

According to the President, in 5 percent of cases, Lady Justice should remove her blindfold, take a look at the litigants, and then reach out and place her thumb on the scales of justice on one side or the other. I think this is a dangerous departure from the most fundamental pillar of our judicial system--judicial impartiality. That is why judges are given lifetime appointments. They are supposed to be unbiased and impartial.

Whatever this new empathy standard is, it is not law. It is more akin to politics than law. Whenever a judge puts his or her thumb on the scale of justice in favor of one party or another, the judge necessarily disfavors the other party. For every litigant who benefits from this so-called empathy, there will be another litigant who loses not because of the law or the facts, but because the judge did not empathize or identify with them.

What is empathy? Is this your personal feeling that you had a tough childhood or some prejudice that you have--you are a Protestant or a Catholic or your ethnicity or your race or some bias you brought with you to life and to the court? Is that what  an empathy is? Well, it has no objective meaning, and that is why it is not a legal standard. The oath of ``impartiality'' to ``equal justice to the rich and the poor alike'' is violated when such things infect the decision making process.

With this as his stated standard, the President nominated Judge Sonia Sotomayor for the Supreme Court of the United States. Thus far our review of her record suggests that she may well embrace the President's notion of empathy, and I will share a few thoughts on that.
 

(x) 2009-07-13 - Mitch McConnell on senate floor (record not accurate with tape)
 
Now, President Obama has made it abundantly clear, as a Senator, as a candidate for President, and now as President, that he has a somewhat different requirement for his appointees to the Federal bench. He has repeatedly emphasized that his ``criterion'' for a federal judge is their ability to ``empathize'' with certain groups. That is a great standard, if you are a member of one of those specific groups. It is not so great, though, if you are not. So it might be useful to consider some of the groups who have found themselves on the short end of the ``empathy'' standard.

First, there are those who rely on the first amendment's right to engage in political speech. Then there are those Americans who want to lawfully exercise their right to bear arms under the second amendment. Next, those who want protection under the fifth amendment's requirement that private property cannot be taken for a public purpose without just compensation, and that it should not be taken for another person's preferred private use at all. Also, there are those who want protection from unfair employment practices under the 14th amendment's guarantee of the equal protection of the law.

I mention these specific groups because Judge Sotomayor has had to handle cases in each of these areas. And looking at her record, it appears the President has nominated just the kind of judge he said he would, someone who appears to have ``empathy'' for certain groups who appear before her, but not for others.

As I discussed last week, Judge Sotomayor kicked out of court the claims of New Haven, CT, firefighters who had been denied promotions because some minority firefighters had not performed as well as a group of mostly White firefighters on a race-neutral exam. The Supreme Court reversed her decision in this matter, her third reversal just this term, with all nine justices finding that she misapplied the law. Her treatment of this case, the Ricci case, has been criticized across the political spectrum as ``perfunctory'' and ``peculiar,'' and it called into question whether her dismissive handling of the firefighters' important claims was unduly influenced by her past advocacy in the area of employment preferences and quotas.

The losing parties in these cases might not have belonged to the groups that the President had in mind when he was articulating his ``empathy'' standard. But they certainly underscore the hazards of such a standard. They had important constitutional claims, and they deserved to have their claims treated seriously and adjudicated fairly under the law, regardless of what Judge Sotomayor's personal and political agendas might be. Yet it strikes me that the losing parties in these cases did not in
fact get the fair treatment they deserved.

(x) Sotomayor Hearings Overview

    (x) 2009-07-13 - Day 1 - All - Senators Opening - Sotomayor Opening
 

 Jeff Sessions, ranking Republican member.

I'm afraid our system will only be further corrupted as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one's empathy,"[7] as well as "their broader vision of what America should be."[8]

Like the American people, I have watched this for a number of years, and I fear this "empathy standard" is another step down the road to a liberal activist, results-oriented, and relativistic world where:
• Laws lose their fixed meaning,
• Unelected judges set policy,
• Americans are seen as members of separate groups rather than simply Americans, and
• Where the constitutional limits on government power are ignored when politicians want to buy out private companies.

So, we have reached a fork in the road. And there are stark differences between the two paths.

I want to be clear:

I will not vote for—no senator should vote for—an individual nominated by any President who is not fully committed to fairness and impartiality towards every person who appears before them.

I will not vote for—no senator should vote for—an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.

Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom.
 

Statement by Sen. Chuck Grassley, Republican of Iowa:

President Obama said that he would nominate judges based on their ability to "empathize" in general and with certain groups in particular. This "empathy" standard is troubling to me. In fact, I'm concerned that judging based on 'empathy" is really just legislating from the bench.

The Constitution requires that judges be free from personal politics, feelings and preferences. President Obama's "empathy" standard appears to encourage judges to make use of their personal politics, feelings and preferences. This is contrary to what most of us understand to be the role of the judiciary.

Judge Sotomayor, President Obama clearly believes you measure up to his "empathy" standard. That worries me. I've reviewed your record and have concerns about your judicial philosophy. For example, in one speech, you doubted that a judge could ever be truly impartial. In another speech, you argued it'd be a "disservice both to the law and society" for judges to disregard personal views shaped by one's "differences as women or men of color." In yet another speech, you proclaimed that the court of appeals is where "policy is made."

Statement by Sheldon Whitehouse, Democrat of Rhode Island:

if you have empathy for those people in this job, you are doing nothing wrong. It is far better to listen for those unheard voices, and to seek to understand their points of view, than to ignore them in favor of a particular ideology, or corporation, or just the status quo.

The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches, and as a refuge when those branches are corrupted, or consumed by passing passions.

Courts were designed to be our guardians against what Hamilton in the Federalist Papers called "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."

In present circumstances, those oppressions tend to fall on the poor and powerless, those without voice or influence. 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."

A little skepticism of the status quo, an ear for challenges to the prevailing power structure, an extra effort to hear the side of a party who is out-spent and out-gunned—there is no shame in that for a judge. It is exactly what the Founders intended in an American judge.

The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting, and intended function of the judiciary in our constitutional structure, and the empathy President Obama saw in you has a constitutionally proper place in that structure.

If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even upended, when the Constitution or laws may require; where the comfortable can be afflicted and the afflicted find some comfort, all under the shelter of the law.

It is worth remembering that judges of the United States have shown great courage over the years, courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called "the cool dry atmosphere of judicial determination," amidst the inflamed passions or invested powers of the day.

Judge Sotomayor, I believe your broad and balanced background and empathy prepare you well for this constitutional and proper judicial role. So again, I join my colleagues in welcoming you to the Committee and I look forward to your testimony.   

Statement by Jon Kyl, Republican of Arizona:

What Judge Paez said has been the standard for 220 years—it correctly describes the fundamental and proper role for a judge.

Unfortunately, a very important person has decided it is time for change—time for a new kind of judge; one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. That person is President Obama; and the question before us is whether his first nominee to the Supreme Court follows his new model of judging or the traditional model articulated by Judge Paez.

President Obama, in opposing the nomination of Chief Justice Roberts, said that 'while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court . . . —what matters on the Supreme Court is those 5 percent of cases that are truly difficult. . . . In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.'

How does President Obama propose judges deal with these hard cases? Does he want them to use judicial precedent, canons of construction, and other accepted tools of interpretation that judges have used for centuries? No, President Obama says that 'in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.'

Of course, every person should have empathy, and in certain situations, such as sentencing, it may not be wrong for judges to be empathetic. The problem arises when empathy and other biases or prejudices that are 'in the judge's heart' become 'the critical ingredient' to deciding cases. As Judge Paez explained, a judge's prejudices, biases, and passions should not be embraced—they must be 'set aside' so that a judge can render an impartial decision as required by the judicial oath and as parties before the court expect.

I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases. I practiced law for almost 20 years before every level of state and federal court, including the U.S. Supreme Court, and never once did I hear a lawyer argue that he had no legal basis to sustain his client's position, so that he had to ask the judge to go with his 'gut' or 'heart.' If judges routinely started ruling on the basis of their personal feelings, however well-intentioned, the entire legitimacy of the judicial system would be jeopardized.

Tom Coburn, Republican of Oklahoma:
I think this oath succinctly captures the role of the judge and I'm concerned about some of your statements in regard to that. Your judicial philosophy might be, and I'm not saying it is, inconsistent with the impartial, neutral arbiter the oath describes.
With regard to your judicial philosophy, the burden of proof rests on you. But in this case, that burden has been exaggerated by some of your statements and also by some of President Obama's stated intent to nominate someone who is not impartial, but instead favors certain groups of people.

During the campaign, he promised to nominate someone who's got the heart and the empathy to recognize what it's like to be a young, teenaged mom. The implication is that our judges today don't have that.
Do you realize how astounding that is? The empathy to understand what it's like to be poor, to be African-American or gay or disabled or old. Most of our judges understand what it's like to be old.

Senator Obama referred to his empathy standard when he voted against Chief Justice Roberts. He stated, "The tough cases can only be determined on the basis of one's deepest values, one's core concerns, one broader perspective on how the world works and the depth and breadth of one's empathy."

I believe that standard is antithetical to the proper role of a judge. The American people expect our judges to treat all litigants equally, not to favor and not to enter the courtroom already prejudiced against one of the parties. That's why Lady Justice is always depicted blind and why Aristotle defined law as "reason free from passion."

We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from.

 Dick Durbin, Democrat of Illinois:
 

The recent decision of Ledbetter v. Goodyear Tire & Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simple, fundamental - should women be paid the same as men for the same work? Lilly Ledbetter was a manager at a Goodyear Tire plant in Alabama. Worked there for 19 years, didn't learn until she was about to retire that her male colleagues in the same job were paid more.

She brought a discrimination lawsuit. The jury awarded her a verdict. The Supreme Court, in a five-four decision, reversed it, threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late. They said her complaint should have been filed within 180 days of the first discriminatory paycheck.

That decision defied common sense and the realities of a workplace where few employees know what their fellow employees are being paid. It contradicted the decades of past precedent.

In the Safford v. -- United School District v. Redding, 13-year- old girl strip-searched at her school because of a false rumor that she was hiding ibuprofen pills. At the oral argument in April, several of the Supreme Court justices asked questions about the case that, unfortunately, revealed a stunning lack of empathy about the eighth grade victim.

One of the justices even suggested that being strip-searched was no different than changing clothes for gym class. Although Justice Ruth Bader Ginsburg helped her eight male colleagues understand why the strip search of a 13-year-old girl was humiliating enough to violate her constitutional rights, a majority of the justice ruled that the school officials were immune from liability.

=================================

2009-07-14 - Day 2 - All

LEAHY:
And then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of the fairness and integrity based on reason of law. And I'll throw one more quote in there. It's what you told me that ultimately and completely, the law is what counts -- or the law is what controls.
So tell us, you've heard all of these charges and countercharges, the wise Latina and on and on. Here's your chance. You tell us -- you tell us what's going on here, Judge.

SOTOMAYOR: Thank you for giving me an opportunity to explain my remarks. No words I have ever spoken for written have received so much attention. (LAUGHTER

.

LEAHY: Well, and isn't that what -- you've been on the bench for 17 years. Have you set your goal to be fair and show integrity, based on the law?

SOTOMAYOR: I believe my 17-year record on the two courts would show that, in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explain to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.

SESSIONS:

SOTOMAYOR: I believe my record of 17 years demonstrates fully that I do believe that law -- that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided, I have done what the law requires.

----

SESSIONS: Judge, I would just say, I don't think it's that clear. I looked at that on tape several times, and I think a person could reasonably believe it meant more than that.

But yesterday you spoke about your approach to rendering opinions and said, quote, "I seek to strengthen both the rule of law and faith in the impartiality of the justice system," and I would agree. But you have previously said this: "I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate."

So first, I'd like to know, do you think there's any circumstance in which a judge should allow their prejudices to impact their decision-making?

SOTOMAYOR: Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.
What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying ...

SESSIONS: Well, Judge ...

SOTOMAYOR: ... because that's our job.

SESSIONS: But the statement was, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies and prejudices are appropriate." That's exactly opposite of what you're saying, is it not?

SOTOMAYOR: I don't believe so, Senator, because all I was saying is, because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open- minded to accept that they may not be, and that we have to judge always that we're not letting those things determine the outcome. But there are situations in which some experiences are important in the process of judging, because the law asks us to use those experiences.

SESSIONS: Well, I understand that, but let me just follow up that you say in your statement that you want to do what you can to increase the faith and the impartiality of our system, but isn't it true this statement suggests that you accept that there may be sympathies, prejudices and opinions that legitimately can influence a judge's decision? And how can that further faith in the impartiality of the system?

SOTOMAYOR: I think the system is strengthened when judges don't assume they're impartial, but when judges test themselves to identify when their emotions are driving a result, or their experience are driving a result and the law is not.

SESSIONS: I agree with that.

SESSIONS: I know one judge that says that if he has a feeling about a case, he tells his law clerks to, "Watch me. I do not want my biases, sympathies or prejudices to influence this decision, which I've taken an oath to make sure is impartial." I just am very concerned that what you're saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions and prejudices may influence your decision-making.

SOTOMAYOR: Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something but the law command the result.

---

SESSIONS: Judge, I -- I think it's consistent in the comments I've quoted to you and your previous statements that you do believe that your backgrounds will accept -- affect the result in cases, and that's troubling me. So that is not impartiality. Don't you think that is not consistent with your statement, that you believe your role as a judge is to serve the larger interest of impartial justice?

SOTOMAYOR: No, sir. As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.

SESSIONS: Judge...

SOTOMAYOR: I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.

---
 

SOTOMAYOR: We were very sympathetic and expressed our sympathy to the firefighters who challenged the city's decision, Mr. Ricci and the others. We stood the efforts that they had made in taking the test. We said as much.

They did have before them a 78-page thorough opinion by the district court. They, obviously, disagreed with the law as it stood under Second Circuit precedent. That's why they were pursuing their claims and did pursue them further.

FEINGOLD:

 Let me go to something completely different. There's been a lot of talk about this concept of empathy in the context of your nomination. A judge's ability to feel empathy does not, of course, mean the judge should rule one way or another, as you well explained.

But I agree with President Obama that it's a good thing for our country for judges to understand the real-world implications of their decisions and the effects on regular Americans and to seek to understand both sides of an issue.

Judge, your background is remarkable. As you explained yesterday, your parents came to New York from Puerto Rico during World War II. And after your father died, your mother raised you on her own in a housing project in the South Bronx. You are a lifelong New Yorker and a Yankee fan, as I understand it. But many Americans don't live in big cities. Many of my constituents live in rural areas and small towns, and they root for the Brewers and the Packers.

Now, some might think that you don't have a lot in common with them. What can you tell me about your ability as a judge to empathize with them, to understand the everyday challenges of rural and small- town America and how Supreme Court decisions might affect their lives?

SOTOMAYOR: Yes, I live in New York City, and it is a little different than other parts of the country. But I spend a lot of time in other parts of the country. I've visited a lot of states. I've stayed with people who do all types of work. I've lived on -- not lived -- I've visited and vacationed on farms. I've lived and vacationed in mountaintops. I've lived and vacationed in all sorts -- not lived. I'm using the wrong word.

I've visited all sorts of places. In fact, one of my habits is when I travel somewhere new, I try to find a friend I know to stay with them. And it's often not because I can't afford a hotel. Usually, the people who are inviting me would be willing to pay.

But it's because I do think it's important to know more than what I live and to try to stay connected to people and to different experiences. I don't think that one needs to live an experience without appreciating it, listen to it, watching it, reading about it. All of those things -- experiencing it for a period of time -- help judges in appreciating the concerns of other experiences that they don't personally have.

And as I said, I try very, very hard to ensure that, in my life, I introduce as much experience with other people's lives as I can.

---

KYL: **
 I appreciate that. Issues which are similar is different, though, from an issue which is the same. And I would just suggest that there would be an appearance of impropriety. If you've already decided the issue of incorporation one way, that's the same issue that comes before the Court. And then you, in effect, review your own decision.

That, to me, would be a matter of inappropriate and, perhaps, you would recuse yourself. I understand your answer. Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon.

And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut? 

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

KYL: Right. Now, thank you for that. Let me go back to the beginning. I raised this issue about the president's interpretation, because he clearly is going to seek nominees to this court and other courts that he's comfortable with and that would imply who have some commonality with his view of the law in judging. It's a concept that I also disagree with.

SCHUMER: (goes on and on about sympathy)

So if a questioner is focusing on a few statements or, quote, "those few words" and doesn't refer at all to the large body of cases where you've carefully applied the law regardless of sympathies, I don't think that's balanced or down the middle.

And by focusing on these few statements, rather than your extensive record, I think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law, but the record shows otherwise. And that's what I now want to explore.

Now, from everything I've read in your judicial record and everything I've heard you say, you put rule of law first, but I want to clear it up for the record, so I want to talk to you a little bit about what having empathy means, and then I want to turn to your record on the bench, which I believe is the best way to get a sense of what your record will be on the bench in the future.

Now, I believe that empathy is the opposite of indifference, the opposite of, say, having ice water in your veins, rather than the opposite of neutrality. And I that's the mistake in concept that some have used.
But let's start with the basics. Will you commit to us today that you will give every litigant before the court a fair shake and that you will not let your personal sympathies toward any litigant overrule what the law requires?

SOTOMAYOR: That commitment I can make and have made for 17 years.

SCHUMER: OK. Well, good. Let's turn to that record. I think your record shows extremely clearly that, even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law, because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win, but that's clearly not the case in your courtroom.

For example, in -- and I'm going to take a few cases here and go over them with you. For example, in In Re: Air Crash Off Long Island, which is sort of a tragic but interesting name for a case, you heard the case of families of the 213 victims of the tragic TWA crash, which we all know about in New York.
The relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair, in order to get some modicum of relief, though, of course, nothing a court could do would make up for the loss of the loved ones. Did you have sympathy for those families?

SOTOMAYOR: All of America did. That was a loss of life that was traumatizing for New York state, because it happened off the shores of Long Island. And I know, senator, that you were heavily involved in ministering to the families...

SCHUMER: I was.

SOTOMAYOR: ... during that case.

SCHUMER: Right.

SOTOMAYOR: Everyone had sympathy for their loss. It was absolutely tragic.

SCHUMER: And many of them were poor families, many of them from your borough in the Bronx. I met with them. But ultimately, you ruled against them, didn't you?

SOTOMAYOR: I didn't author the majority opinion in that case. I dissented from the majority's conclusion. But my dissent suggested that the court should have followed what I viewed as existing law, and reject their claims.

SCHUMER: Yes.

SOTOMAYOR: Or at least a portion of their claim.

SCHUMER: Right. Your dissent that, "the appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts." Is that correct?

SOTOMAYOR: Yes, sir.

SCHUMER: And that's exactly, I think, the point that my colleague from Arizona and others were making about how a judge should rule. How did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy, and were looking to the courts -- and to you -- for a sense of justice?

SOTOMAYOR: One, in as tragic, tragic, horrible situation like that, can't feel anything but personal sense of regret. But those personal senses can't command a result in a case.

As a judge, I serve the greater interest. And that greater interest is what the rule of law supplies.

As I mentioned in that case, it was fortuitous that there was a remedy. And that remedy, as I noted in my case, was Congress. And, in fact, very shortly after the 2nd Circuit's opinion, Congress amended the law, giving the victims the remedies that they had sought before the court. And my dissent was just pointing out that, despite the great tragedy, that the rule of law commanded a different result.

SCHUMER: And it was probably very hard, but you had to do it. Here's another case, Washington v. County of Rockland -- Rockland is a county, a suburb of New York -- which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. Remember that case?

SOTOMAYOR: I do.

SCHUMER: Did you have sympathy for the officers filing that case?

SOTOMAYOR: Well, to the extent that anyone believes that they've been discriminated on the basis of race, that not only violates the law, but one would have -- I wouldn't use the word "sympathy" -- but one would have a sense that this claim is of some importance, and one that the court should very seriously consider.

SCHUMER: Right. Because, I'm sure, like Judge Alito said, and others, you had suffered discrimination in your life as well. So, you could understand how they might feel, whether they were right or wrong in the outcome, in the -- in the -- in filing.

SOTOMAYOR: I've been more fortunate than most. The discrimination that I have felt has not been as life-altering as it has for others. But I certainly do understand it, because it is a part of life that I'm familiar with and have seen others suffer so much with, as I have in my situation.

SCHUMER: Now, let me ask you again. How did you feel ruling against law enforcement officers, the kind of people you've told us repeatedly you've spent your career working with DA's office and elsewhere, and for whom you have tremendous respect?

SOTOMAYOR: As with all cases where I might have a feeling of some identification with, because of background or because of experiences, one feels a sense of understanding what they have experienced. But in that case, as in the TWA case, the ruling that I endorsed against them was required by law.

SCHUMER: Here's another one. It was called Boykin v. Keycorp. It was a case in which an African-American woman filed suit after being denied a home equity loan, even after her loan application was conditionally approved based on her credit report. She claimed that she was denied the opportunity to own a home, because of her race, her sex and the fact that her perspective home was in a minority- concentrated neighborhood. She didn't even have a lawyer or anyone else to interpret the procedural rules for her. She filed this suit on her own. Did you sympathy for the woman seeking a home loan from the bank?

SOTOMAYOR: Clearly, everyone has sympathy for an individual who wants to own their own home. That's the typical dream and aspiration, I think, of most Americans. And -- and if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feelings.

SCHUMER: Right. And in fact, you ruled that her claim wasn't timely. Rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. We never got to whether she was actually discriminated against, because she didn't file in a timely manner. Is...

SOTOMAYOR: I...

SCHUMER: Is my summation there accurate? You want to elaborate?

SOTOMAYOR: Yes, in terms of the part of the claim that -- that we held was barred by the statute of limitations. In my -- in a response to the earlier question -- to an earlier question, I indicated that the law requires some finality. And that's why Congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. Those are statutes, and they must be followed if a situation -- if they apply to a particular situation.

SCHUMER: Finally, let's look at a case that cuts the other way with a pretty repugnant litigant. This is the case called Pappas v. Giuliani. And you considered claims of a police employee who was fired for distributing terribly bigoted and racist materials. First, what did you think of the speech in question that this officer was distributing?

SOTOMAYOR: Nobody, including the police officer, was claiming that the speech wasn't offensive, racist and insulting. There was a question about what his purpose was in sending the letter.
But my opinion dissent in that case pointed out that offensiveness and racism of the letter, but I -- I issued a dissent from the majority's affirmance of his dismissal from the police department because of those letters.

SCHUMER: Right. As I understand it, you wrote that what the actual literature that the police officer was distributing was, quote, "patently offensive, hateful and insulting." But you also noted that, quote -- and this is your words in a dissent, where the majority was on the other side -- quote, "Three decades of jurisprudence and the centrality of First Amendment freedoms in our lives," that's your quote, the employee's right to speech had to be respected.

SOTOMAYOR: In the situation of that case, that was the position that I took because that's what I believed the law commanded.

SCHUMER: Even though, obviously, you wouldn't have much sympathy or empathy for this officer or his actions. Is that correct?

SOTOMAYOR: I don't think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people's rights to engage in hateful speech.

SCHUMER: Right. Now, I'm just going to go to a group of cases here rather than one individual case. We could go -- we could go -- we could do this all day long where sympathy, empathy would be on one side, but you found rule of law on the other side and you sided with rule of law.

SCHUMER:
 Right. The only point I'm making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at. A, it's a lot of cases, 850. B, one would think -- I'm not going to ask you to state it -- that you'll have sympathy for immigrants and immigration. And, third, there is some degree of flexibility here, as Judge Newman said, just because of the way the law is. And yet you are exactly in the middle of the Second Circuit.

If empathy were governing you, I don't think you would have ended up in that position, but I'll let everybody judge whether that's true. But the bottom line here, in the air crash case, in Washington, in Boykin (ph), in this whole mass of asylum cases, you probably had sympathy for many of the litigants, if not all of them, ruled against them.

The cases we've just discussed are just a sampling of your lengthy record, but they do an effective job of illustrating the fact that, in your courtroom, rule of law always triumphs.

And would you agree? I mean, that seems to me, looking at your record. You know it much better than I do, that rule of law triumphing probably best characterizes your record as your 17 years as a judge.

SOTOMAYOR: I firmly believe in the fidelity to the law. In every case I approach, I start from that working proposition and apply the law to the facts before us.

SCHUMER: And has there ever been a case in which you ruled in favor of a litigant simply because you were sympathetic to their plight, even if rule of law might not have led you in that direction?

SOTOMAYOR: Never.

(x) 2009-07-15 - Day 3 - All

Senator Charles Grassley talked about his views on the nomination of Judge Sonia Sotomayor to the Supreme Court,


SPECTER

We have had a consistent line of people who are nominees who make references to their own backgrounds. We all have our perspective.

Justice O'Connor talked about her life experience. Justice Alito talked about his family suffering from ethnic slurs. Justice Thomas, Pin Point, Ga., emphasized, talked about putting himself in the shoes of other people. And Justice Scalia talked about being in -- in a racial minority.

The expectation would be that a woman would want to say something to assert her confidence in a country which denied women the right to vote for decades, where the glass ceiling has limited people, where there is still disparagement of people on ethnic background.

Just this month in a suburb of Philadelphia, Hispanic children were denied access to a pool for whites only, as were African American children. So I can see how someone would take pride in being a Latina woman and assert -- assert herself.

A lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations. We've come a long way on the expansion of constitutional rights.

Oliver Wendell Holmes' famous statement that the life of the law is experience, not logic.
Justice Cardozo in Palko v. Connecticut talked about changing values.

The Warren court changed the Constitution practically every day of which I saw, being in the district attorney's office, with changes in search and seizure, confessions, Miranda, right to counsel. Who could have thought that it would take until 1963 to have the right to counsel in Gideon v. Wainwright?

We've heard a lot of talk about the nomination proceeding of Judge Bork. And they tried to make "Bork" into a verb. Somebody being Borked. Well, anybody who looks at that record will see that it's very, very different. We had a situation where Judge Bork was an advocate of original intent from his days writing the law review article in the Indiana Law Review.

And how can you have original intent when the 18th Amendment was written by a Senate on equal protection with the Senate galleries which were segregated? Or where you have Judge Bork, who believed that equal protection applied only to race and ethnicity? It didn't even apply to women.

But it was a very, very thorough hearing. I spent beyond the hearing days in three long sessions, five hours with Judge Bork. So it was his own approach to the law which resulted there. But you had an evolution of constitutional law, which I think puts empathy in a -- in an OK status, in an OK category.

 Orrin Hatch
 Okay. President george h.w. bush appointed you to the u.s. district court in 1992. I was here. About a year earlier, he nominated clarence thomas to the united states supreme court, who, like you, was a u.s. circuit court judge. President bush described him as quote, delightful and warm, intelligent person, who has great empathy, unquote. President bush then said that judge thomas would decide cases fairly, quote, as the facts and the law require. In other words, he drew a clear distinction between the human quality of empathy and the judicial quality or duty, excuse me, of impartiality. This is obviously very different from then saying that a judge's personal empathy is an essential ingredient for deciding cases. Which of these is closer to your own view, distinguishing human empathy from judicial impartiality or mixing them together so that empathy becomes part of the judicial decision making process?
 
 Sotomayor, sonia
 presidents have used the word empathy and each of them has given it their different meaning. And i can't speak for their choice of the word or make a choice between what meaning is closer to what i believe or not. If i can state what i believe very simply, life experiences help the process of listening and understanding an argument. The law always directs the result in the case. A judge cannot decide cases on the basis of personal feelings, biases or sympathy. To the extent i have ever spoken about those things, it was to make sure that one understood and said that a judge always has to guard against those things affecting the outcome of a case. The question of when it's appropriate, the supreme court has said some emotion's appropriate. Judges, if they're reacting to an argument of a party, that's an appropriate emotion. Inappropriate is deciding the consequence based on that. There are in sentencings, you're asked to look at the effect of a defendant's conduct on victims. Are you ruling on the basis of sympathy, no, but you're being asked on the basis of life experience to understand that, and then you look at that consequence and weigh all the factors that the statute commands you consider, and then you come out at a reasonable sentence.

 (x) 2009-07-16 - Day 4 - All
 

KYL:

  But, Judge, I think maybe we're, to use the president's analogy that we talked about in my very first question to you, we may be in about the 25th mile of the marathon, and I might even be persuaded to have a little empathy for this last mile here. I think you're just about done.

I wanted to go over three quick things, if I could. The first is the exchange that we had this morning regarding the decision in Ricci in which you insisted that you were bound by Supreme Court and Second Circuit precedent. I quoted from the Supreme Court decision to the effect that I -- I believe that that contradicted your answer.

-----

HENDERSON:
 

This afternoon I will briefly address four of the points that have figured in the debate about Judge Sotomayor's nomination:

•  first, her qualifications for serving on the nation's highest court;
• second, her personal background and her empathy for others who have had to work hard to succeed;
• third, her role in the unanimous ruling by a three-judge panel in the case of Ricci vs. DeStefano;
• and fourth, her past membership on the board of one of the Leadership Conference's member organizations, the Puerto Rico Legal Defense and Education Fund.
• ...

Second, as with other nominees across the philosophical spectrum, including Justices Thomas and Alito, Judge Sotomayor has spoken of her family history and her personal struggles. These experiences help her to understand others and to do justice. They further qualify her for the highest court, and she has said and done nothing that could reasonably be understood otherwise.

---

CARDIN:
 Well, thank you for correcting my numbers on the number that had voted. I appreciate that.
I just want to ask Mr. McDaniel a quick question, and that is, during the confirmation hearings both Democratic and Republican senators have been urging from our nominee that you need to look at what the law is, and you can't judge based upon emotion. You have to do -- you have to follow the precedents of the court.

And I have a simple question to you in the Ricci case. Do you believe that the Sotomayor decision with the three-judge panel was within the mainstream of judicial decision-making when that decision was reached?

MCDANIEL: Senator, I do believe that. And to hear the stories of these firefighters in person, I -- I don't have any reason not to use the word empathy. I have a great deal of empathy for the circumstances that they have described, and I don't know that I have a great deal for how the city fathers handled the matter.

But by the time it made it to the 2nd Circuit I believe that the panel did what the law required, and I don't think that there is a just legal criticism for the way that the panel handled the matter. And the fact that the Supreme Court chose to change the law in a bare majority also is their prerogative.

----

JEFFRIES (audio missing)

Unfortunately, based on public statements, Judge Sotomayor has repeatedly offered misplaced sympathy for criminals, despite the fact that justice exists to protect the innocent and to punish the guilty. Forgiveness and mercy are one thing. Punishment and accountability are another.

In four situations, four different events that are noted in my testimony, Judge Sotomayor displayed sympathy and perhaps empathy for criminals that may be well intentioned but I feel is tragically misplaced.

At a Columbia Law School Public Service Center, she stated, "It is all too easy as a prosecutor to feel the pain and suffering of victims and to forget that defendants, despite whatever illegal act they've committed, however despicable their acts may have been, the defendants are human beings."

In January 1995 in receiving the Hogan-Morganthau Award, Judge Sotomayor stated, "The end result of a legal process is to find a winner. However, for every winner, there is a loser. And the loser is himself or herself a victim," forgetting for the fact that when meeting justice, it's not to find a winner; it's to find justice.

On July 12, 1993, in a federal sentencing hearing that she provided over, over a cocaine dealer, Judge Sotomayor apologized to the cocaine dealer for having to send him to federal prison. She stated the mandatory five-year sentence was a "great tragedy for our country." She also stated she hoped the cocaine dealer "will appreciate that we all understand that you were a victim of the economic necessities of our society." And then she added, "But unfortunately, there are laws I must impose."

Having viewed the autopsy photos of my massacred brother and heard the heartbreaking stories of thousands of victims and survivors of violent crimes in America, I believe Judge Sotomayor's sympathy for criminals at the expense of the burdens carried by crime victims is unworthy of our nation's highest court, where public safety and protection of the innocent should be paramount.

Whereas Judge Sotomayor's biography is admirable and compelling, it is a great American story of which as an American I am proud. I am deeply troubled that she has regularly offered well-intentioned yet misguided sympathy to criminals without notable deference to the pain and suffering of victims. These are the very people who need government's protection.

Statistics show that the most egregious crime in our country disproportionately impacts the poor, the disadvantaged, the downtrodden, the defenseless. These are the very people that the justices in our highest court must have sympathy for, must have empathy for. Madam Chairman, I appreciate your patience with my testimony that has extended beyond its time. (CROSSTALK)

 (x) 2009-07-28 - Day 5 - Committee Approves Sotomayor

couldn't find full transcripts for this day.

Sheldon

Mr. Chairman I think we are witness here to an effort to define justice in America in alignment with a particular point of view. My colleagues are entitled to their point of view. They are entitled to their view about guns, they are entitled to their point of view about property rights, they are entitled to their point of view about other issues.

What I resist is any effort to define that point of view as a judicial norm against which any other point of view is to be seen as an aberration, as "biases and prejudices," to use one quotation. In this case, I further believe that their definition of justice in America - their definition - is just plain wrong both as history and as justice. In particular I do not wish to force, as the new judicial norm, the sort of judges who, to paraphrase a recent article on the Supreme Court "in every major case vote for the corporation against the individual, for the government against the criminal defendant, and for the executive branch against the legislature." I do not wish judges without empathy, who will ignore the long and proud history of the courtroom, as the last stand for many beleaguered Americans where they can get fearless justice even when all of the forces of politics, of proper opinion, and of corporate power may be arrayed against them - with judges willing to provide that fearless justice, even if it completely upsets the status quo.

Grassley

President Obama clearly believes Judge Sotomayor measures up to his “empathy” standard, which encourages judges to make use of their personal politics, feelings and preferences. This radical “empathy” standard stands in stark opposition to what most of us understand to be the proper role of the judiciary. To her credit, at the hearing Judge Sotomayor repudiated President Obama’s “empathy” standard. But Judge Sotomayor’s record, both in and outside of the courtroom, reveal to me a judicial philosophy that bestows a pivotal role to personal preferences and beliefs in her judicial method.

-----

Unfortunately, I’m not convinced that Judge Sotomayor will be able to set aside her personal biases and prejudices and decide cases in an impartial manner based upon the Constitution. I’m not convinced that Judge Sotomayor will protect important Constitutional rights, nor am I convinced that she will refrain from creating new rights under the Constitution. I’m not convinced that Judge Sotomayor understands the proper role of a judge in our system of checks and balances, and I’m not convinced that she will not allow her own personal beliefs and preferences to dictate the outcome of cases before her.

Which Judge Sotomayor will sit on the Supreme Court? Is it the judge who proclaimed that the court of appeals is where “policy is made,” or is it the nominee who pledged “fidelity to the law?” Is it the judge who disagreed with Justice O’Connor’s statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama’s empathy standard?

(x) 2009-07-15 - Charles Grassley (in interview)
 

(x  ) 2009-07-20 - Mitch McConnell - Empathy Standard

The new standard devolved even further during the Roberts nomination. Judge Roberts was a spectacular nominee, a man whose background and legal abilities, even according to Democrats, made him one of the most qualified Supreme Court nominees in the history of our country. For him, Democrats came up with an even more disturbing test.

Ironically, no one Senator articulated this new test more forcefully than Senator Obama. In a floor speech announcing his opposition to John Roberts, Senator Obama was perfectly straightforward. Roberts was completely qualified, he said. But he still would not get his vote. Here is what Senator Obama said on the Senate floor:


There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble. He is personally decent.


The reason Senator Obama would vote against Judge Roberts, he said, rested not on any traditional standard, but on a new one, a standard which amounted to a kind of alchemy based on what he described as ``one's deepest values, one's core concerns, one's broader perspectives on how the world [Page: S7670]
works, and the depth and breadth of one's empathy''--what has come to be known as the ``empathy standard.''

So over the course of the Bush administration the rules completely changed. Not only had it become common practice to block nominees on the grounds of ideology, but now it was acceptable to reject someone based solely on the expectation that their feelings--their feelings--would not lead them to rule in favor of certain groups. Suddenly, judges were not even expected to follow the fundamental principle of blind justice. Deference had eroded even more.

As I have stated repeatedly throughout this debate, empathy is a very good quality in itself. And I have no doubt that Senator Obama--now President Obama--had good intentions, and that his heart was in the right place when he made this argument. But when it comes to judging, empathy is only good if you are lucky enough to be the person or group that the judge in question has empathy for. In those cases, it is the judge, not the law, who determines the outcome. And that is a dangerous road to
go down if you believe, as I do, in a nation not of men but of laws--which brings us to Judge Sotomayor.

Over the past several weeks, Judge Sotomayor has impressed all of us with her life story. And the confirmation process is not easy. I admire anyone who goes through it, which is why I was gratified by Judge Sotomayor's statement at the conclusion of the hearing that she was treated fairly by everyone.

But the first question I have to ask myself in deciding how to vote on this nominee is this: How stands the traditional standard for voting on nominees?

Deference is still an important principle. But it was clearly eroded during the filibusters of appeals court nominees early in the Bush administration, and it was eroded even further when Senators voted against John Roberts and tried to filibuster Samuel Alito. Moreover, the introduction of a new standard--the empathy standard--forces us to reevaluate again the degree of deference a President should be granted. Isn't it incumbent upon even those of us who have always believed in deference to
be even more cautious about approving nominees in this new environment? I believe it is.

If empathy is the new standard, then the burden is on any nominee who is chosen on that basis to show a firm commitment to equal justice under law. In the past, such a commitment would have been taken for granted. Americans have always had faith that our judges would apply the law fairly--or at least always knew they should. Unfortunately, the new empathy standard requires a measure of reassurance about this. If nominees aren't even expected to apply equal justice, we can't be expected simply
to defer to the President, especially if that nominee, as a sitting judge, no less, has repeatedly doubted the ability to adhere to this core principle.

This doesn't mean I would oppose a nominee just because he or she is nominated by a Democrat. It means that, at a minimum, nominees should be expected to uphold the judicial oath that judges in this country have taken since the earliest days of our Nation; namely, that they will ``administer justice without respect to persons, and do equal right to the poor, to the rich, and ..... faithfully and impartially discharge and perform all the duties incumbent upon them under the Constitution and laws
of the United States, so help [them] God.''

....

Here was a case where Judge Sotomayor's long history of advocacy for group preferences appeared to overtake an evenhanded application of the law. Judge Sotomayor didn't empathize with the firefighters who had earned a promotion, and they suffered as a result. This is the real-world effect of the empathy standard. If the judge has empathy for you, great, but if she has it for the other guy, it is not so good. That is why you can call this new standard a lot of things, but you certainly can't call
it justice.

2009-07-30 - Senate - Lamar Alexander - Sotomayor rejected

Courts were never intended to be political bodies composed of judges ``on your side'' who would reliably tilt your way in controversial cases. Courts are supposed to do just the opposite: decide difficult cases with impartiality.

The oath Judge Sotomayor has taken twice and will take again when she is sworn in as Associate Justice of the Supreme Court says it best:

..... I will administer justice without respect to persons, and do equal right to the poor and to the rich and ..... I will faithfully and impartially discharge and perform all the duties incumbent upon me ..... under the Constitution and laws of the United States.

During her confirmation hearings, Judge Sotomayor expressly rejected then-Senator Obama's view that in a certain percentage of judicial decisions, ``the critical ingredient is supplied by what is in a judge's heart ..... and [in] the depth and breadth of one's empathy.'' In answer to a question from Senator Kyl, she said in her confirmation hearing:



I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

2009-08-03 - Tom Udall

 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.
 

2009-08-04 - Mitch McConnell
 But the primary reason I will not support this nomination, as I have already said, is because I cannot support the so-called empathy standard upon which Judge Sotomayor was selected and to which she, herself, has subscribed in her writings and rulings.

As I have said, the empathy standard is a very fine quality. And I have no doubt that Senator Obama, now President Obama, had very good intentions when he made the case for a so-called empathy standard as a Senator, a candidate, and now as President. But when it comes to judging--when it comes to judging--empathy is only good if you are lucky enough to be the person or group for whom the judge in question has empathy. In those cases, it is the judge, not the law, which determines the outcome.
That is a dangerous road to go down if you believe, as I do, in a nation not of men but of laws.

Judge Sotomayor has impressed all of us with her life story, but if empathy is the new standard, then the burden is on nominees such as she who are chosen on that basis to demonstrate a firm commitment to equal justice under the law. On the contrary, Judge Sotomayor has openly doubted the ability of judges to adhere to this core principle, and she has even doubted the wisdom of them doing so.



2009-08-04 - Patrick Leahy (no direct use of the word empathy.)



 

2009-08-04 - Jeff Sessions

Our confirmation process began with the President indicating that empathy was a standard that he believes should be applied to selecting judges. There is some disagreement about that. I am one of those who do not believe that is a legal standard. It is a kind of standard that is closer to a political standard, and we need to be careful that politics do not infect the judiciary.
 

2009-08-04 Bob Menendez

 

2009-08-04 - Sheldon Whitehouse
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.

2009-08-04 - Orin Hatch

President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values ..... core concerns ..... broader perspectives ..... and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to [Page: S8746] appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions.

This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench.

At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions.
......

Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness.

That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what

America's Founders said, that judges must follow the law rather than their personal empathy to decide cases.

....

In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions.

2009-08-04 - James Inhofe


Justice O'Connor has often been cited as saying that ``a wise old man and a wise old woman reach the same conclusion'' in deciding cases ..... [however] I am also not sure that I agree with that statement ..... I would hope that a wise woman with the richness of her experience would, more often than not, reach a better conclusion.

That is pretty emphatic. There is no other way you can interpret that. She thinks that a woman with her experience can make a better conclusion than a White male. I consider that racist. Sotomayor not only suggests the possibility of judicial impartiality but also that gender and ethnicity should influence a judge's decision.

Furthermore, President Obama said that in choosing the next Supreme Court nominee, he would use an empathy standard. While judges may and should be empathetic people, they must be impartial judges first. If empathy was a guiding standard, with whom should a judge empathize? Should more empathy be shown to one race, one gender, one religion, one lifestyle? True justice does not see race, gender, or creed. We are all equal in the eyes of the law, and the law must be applied equally.

That is why she wears a blindfold. It is supposed to be blind justice.

Rather than looking to factors beyond the law, judges must solely examine the facts of the case and the law itself. Their ability to equally apply justice under the law is the standard by which we should select judges. So we have two different standards right now with which I disagree. One is that judges should make policy and, secondly, that gender and ethnicity should influence decisions.
 

2009-08-04 - Sherrod Brown

She was raised in public housing in the Bronx. At age 9, she lost her father, a factory worker. Raised by her mother, a nurse, she battled childhood diabetes while excelling at every level in school. My best friend also suffered from childhood diabetes. He lived with diabetes for some 40 years. I know how it made him more disciplined, it made him more compassionate, and if I could use the word, it made him more empathetic toward those around him. It made him an all-around better person, it made
him a better judge of character, and it made him more fair.

After graduating from our Nation's finest universities, Sonia Sotomayor reached the heights of the legal profession. Each of these experiences exposed her to the array of the American experience.

Current and former Supreme Court Justices from across the ideological spectrum have described how their personal experiences informed their judicial perspective. Judge Sandra Day O'Connor, nominated by President Reagan, once said: 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.

Empathy, perhaps?
Justice Samuel Alito, a conservative nominated by President Bush, said during his confirmation hearings:   When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of the ethnic background or because of religion or because of gender. And I do take that into account.

Empathy, perhaps?

I don't recall when Judge Alito appeared in front of the Judiciary Committee that people questioned his empathy and questioned his ability to do his job because of his background. Similarly, Judge Sotomayor's background and life experiences will impart a new sense of perspective to the Court.

As I hear this discussion of empathy and I hear this accusation of Judge Sotomayor being an activist judge, I think about who has sat on the Supreme Court through much of this Nation's history. Most of the people who sat on the Supreme Court were people of privilege. Most of the people who sat on the Supreme Court were people who were born into privilege. We have seen the Supreme Court, the highest Court in the land, particularly in recent years, side in case after case with the wealthy over
the poor.

We have seen them side with large corporations over workers. We have seen them side with the elite of our society over others in our society. Maybe they decided that way because the Justices came from privileged backgrounds themselves and that is the way they saw the world around them. I don't hear those discussions on the floor. I didn't hear those discussions in the Senate Judiciary Committee from those who oppose Judge Sotomayor's nomination.

2009-08-04 - Charles Grassley

I find it very troubling that President Obama is changing the standard by which our country's Federal judges are selected. Instead of searching for qualified jurists who can be trusted to put aside their personal feelings in order to arrive at a result required by the law, President Obama has said he is looking for a judge who has ``empathy,'' someone who will embrace his or her personal biases instead of rejecting them.

This concept represents a very radical departure from the normal criteria for selecting Federal judges and Supreme Court Justices. In his statement opposing the confirmation of Chief Justice John Roberts, then-Senator Obama compared the process of deciding tough cases in the Supreme Court--can you believe it--comparing it to a marathon. He said:

That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy. ..... Legal process alone will not lead to you a rule of decision. ..... [i]n those difficult cases the critical ingredient is supplied by what is in the judge's heart.  That is the end of the quote from then-Senator Obama.

Until now, judges have always been expected to apply law evenhandedly and to reach the result that the law requires. When speaking about the law, lawyers and judges often talk about what the law is or what the law requires, instead of what the law should be. We expect judges not to confuse the two. We expect judges not to bend the law in order to reach a result that they would want personally instead of what the law requires. We expect judges not to decide cases in favor of a particular litigant because he or she may be more worthy of compassion. We don't ask what the judge's heart says about a particular case of a legal issue. We ask what the law says.

A mandate of judicial empathy turns that traditional legal concept on its head in favor of a lawless standard. If empathy for a litigant's situation becomes a standard for deciding cases, then there is no limit to the effect on American jurisprudence. If a judge's decision in the hard cases is supplied by the content of his or her heart, then that decision cannot be grounded upon objective legal principles. If the last mile that then-Senator Obama referred to is determined by a judge's deepest
feelings instead of legal precedent, then the outcome will differ based on which judge hears the case. Predictably and consistently, hallmarks of the American legal system will be sacrificed on the altar of judicial persuasion and compassion.

When a judge improperly relies on his or her personal feelings instead of relying solely on the law, it leads to creation of bad precedent. If a judge's decision is affected by his or her empathy or sympathy--whatever you want to say--for an affected party or group, then the law of unintended consequences dictates that others will be affected in the future, beyond the present case, and they will be judged by a standard that should not be applied to them because of what a previous judge did about personal sympathy instead of what the law says.

Justice is blind. Empathy is not. Empathetic judges take off the blindfolds and look at the party instead of merely weighing the evidence in light of what the law is. Empathetic judges put their thumbs on the scales of justice, altering the balance that is delicately crafted by the law. Empathetic judges exceed their role as part of the judicial branch and improperly take extraneous, nonlegal factors into consideration. That is why President Obama's judicial standard of empathy is problematic,
and why we should be cautious in deferring to his choices for the judicial branch.

Judge Sotomayor's speeches and writings reveal a judicial philosophy that bestows a pivotal role to personal preferences and beliefs in her judicial method--although Judge Sotomayor attempted to spin away her statements. At her confirmation hearing I had difficulty reconciling what she said at the hearing with statements she has repeated so often throughout the years. That is because the statements made at the hearing and those speeches and law review articles outside the hearing cannot be reconciled.

 

2009-08-05 - Patrick Leahy

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.

2009-08-05 - Amy Klobuchar

I have to say, I woke up this morning to the radio on my clock radio and heard one of my colleagues who decided he was not going to support her, in his words, because of the ``empathy standard.''

I kind of put the pillow over my head. I thought: He must not have been sitting in the hearing because she was specifically asked by one of the other Senators about how she views the cases. They specifically asked her if she agreed with President Obama when he said: You should use your heart as well as the law.

She said: Actually, I do not agree with that. I look at the law and I look at the facts.


2009-08-05 - John Cornyn
As I said, notwithstanding her earlier statements, I agree with that statement she made at the hearing. I believe both Republicans and Democrats were satisfied with that statement as well.

We agreed that ``empathy'' or ``what's in a person's heart''--to borrow a phrase from then-Senator Obama--should not influence the decisions of a judge. I think we were all a little surprised when Judge Sotomayor, at the hearing, rejected President Obama's standard. She said:

I wouldn't approach the issue of judging the way the President does. ..... Judges can't rely on what's in their heart. They don't determine the law. Congress makes the law. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases--it is the law.



I agree with that statement, and indeed Republicans and Democrats alike appeared to embrace that statement of an appropriate judicial philosophy. No one defended the statement that then-Senator Obama made with regard to empathy or what is in a person's heart. I was encouraged to see that.


2009-08-05 - Pat Roberts
While Judge Sotomayor has an impressive --that is a given--I am concerned that her personal judgments and views will impact her judicial decisions. In addition, I find some of her rulings very troubling.

During the Senate's debate on the nomination of Chief Justice John Roberts, then-Senator Obama stated:
that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before the Court, so that both a Scalia or Ginsburg will arrive at the same place most of the time on those 95 percent of the cases, what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and the rules will only get you through the 25th mile of the marathon. That last mile can only
be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.


Thus the entrance of the ``empathy'' issue to this debate. I respectfully disagree with now-President Obama.

Judges must decide all cases in adherence to legal precedent and rules of statutory or constitutional construction. It does not mean if they do that they do not have empathy. I agree--and I think everybody would agree--everybody on the Supreme Court has empathy. But the role of a judge is not to rule based on his or her own personal judgments but to adhere to the laws as they are written.

While Judge Sotomayor stated during her confirmation hearing that ``it is not the heart that compels conclusions in cases, it is the law,'' I still have concerns regarding her ability to remain impartial. She has made some statements in Law Review articles and speeches that are of serious concern. I [Page: S8811]
am not convinced that Judge Sotomayor will set aside her personal judgments and views.

.......

We have a constitutional obligation to ensure that our judges are impartial and faithful to the law.

During Chief Justice John Roberts' confirmation hearing, he noted:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and judge is critical. They make sure everybody plays by the rules [not by empathy], but it is a limited role. Nobody ever went to a ball game to see the umpire.

I am not convinced that Judge Sotomayor will be an umpire and consistently adhere to the rule of law as opposed to empathy.

2009-08-05 - Charles Schumer

Given her upbringing in a Hispanic neighborhood of the Bronx, we might expect that her personal background would make her more, to borrow a term, empathetic to an immigrant seeking asylum. But the cases show that any perceived empathy did not affect her results. In fact, her 83-percent record puts her right in the middle of judges in her circuit.

Even in the realm of sports cases, which are always contentious and closely watched, Judge Sotomayor has shown her evenhandedness. She ruled for the professional football league in an antitrust case brought by a player and against Major League Baseball when she ruled for the players and ended the baseball strike.

I can go on. Judge Sotomayor voted to deny the victims of TWA flight 800 crash a more generous recovery because that was ``clearly a legislative policy choice, which should not be made by the courts.'' If you have empathy, you certainly are going to decide with the victims. I met some of their families. She did not. The law did not allow her.

Judge Sotomayor ruled against an African-American couple who claimed they were bumped from a flight because of their race. Again, against a couple, a case called King, that said they were racially discriminated against. She did not think the facts merited their suit.

Judge Sotomayor rejected the claims of a disabled Black woman who said she was unfairly denied accommodations that were provided to White employees.

2009-08-05 - Roger Wicker
When discussing the qualifications he would look for in replacing Justice Souter, President Obama said:

I view the quality of empathy, of understanding and identifying with people's homes and struggles as an essential ingredient for arriving at just decisions and outcomes.

Empathy is a great personal virtue, but there is a difference between empathy as a person and empathy as a judge. Judges should use the law and the law only, not their personal experiences or personal view or empathy. Personal biases and empathy have no place in reaching a just conclusion under the law. Ricci is an example of where Judge Sotomayor clearly failed this important test.



2009-08-05 - Jon Kyl

Moreover, I appreciate her many declarations during the hearing that judges must decide cases solely on the basis of the facts and the law; and especially her disagreement with the President's erroneous, I believe, formulations that, in the hard cases, a judge should rely on empathy and what is in his or her heart.


2009-08-06 - Dick Durbin
The last issue I would like to address is that word ``empathy.'' Judge Sotomayor's critics have twisted and tortured this word in an effort to discredit her and raise doubts about her objectivity. Empathy is simply the ability to see another person's point of view. It is the ability to put yourself in their shoes. That is it. It doesn't mean exercising bias or favoring a particular side. The judge's critics are wrong to conflate these concepts.

I believe, and President Obama believes, that Judge Sotomayor's life experience--from her days growing up in public housing, to her service as a high-powered lawyer representing large corporations--will give her a unique ability to understand the interests of all the parties that come before her for decisions of the Supreme Court. It gives her an ability to understand different perspectives and points of view. That is what empathy is all about.

Judge Sotomayor had demonstrated this quality in 17 years on the bench. It explains why she enjoys such a reputation for fairness and thoughtfulness.


2009-08-06 - George Voinovich
I am comforted by Judge Sotomayor's express rejection of then-Senator Obama's view that in a certain percentage of judicial decisions ``the critical ingredient is supplied by what's in the judge's heart and the depth and breadth of one's empathy.'' In answer to a question from Senator Kyl, Judge Sotomayor said:

I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law. The judge applies the law to the facts before that judge.

....
In closing, I wish to make a few remarks about the judicial confirmation process.

Judge Sotomayor is the third nominee to the Supreme Court to come before the Senate since I came to the Senate in 1999. For both Justice Roberts and Justice Alito, then-Senator Obama promoted an ``empathy standard'' to determine if he would vote for these nominees. Then-Senator Obama said:

The critical ingredient is supplied by what is in the judge's heart.

Such an analysis is no analysis at all. In fact, it flies in the face of the meritocracy in which Judge Sotomayor succeeded. All of us in this Chamber can examine the academic credentials of and prior judicial decisions authored by a nominee and determine whether he or she is qualified. We cannot examine and judge what is in the heart.

Let me be clear. If I applied Senator Obama's standard, I would not be voting for Judge Sotomayor, his nominee. The President was wrong. I think his standard makes the whole nomination process an exercise in partisan politics. We need less politics in the judicial selection process and the judiciary in general, not more. It has become too politicized in the last several years. It is something about which all of us should be concerned.

I urge all my colleagues to reject the Obama empathy standard--just as Judge Sotomayor rejected it, just as I am rejecting it--and return to a standard where it is the qualifications of the nominee we judge, not the politics or heart of that nominee.
 

2009-08-06 - Charles Grassley
When then-Senator Obama voted against now-Chief Justice Roberts, he spoke from his desk over there about how a judge needed to have, in his words, ``empathy'' to decide the hard cases. He said:

That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy....... in these difficult cases the critical ingredient is supplied by what is in the judge's heart.

In another speech, President Obama further elaborated on this empathy standard:

In those 5 percent of cases, what you've got to look at is what is in the Justice's heart. What's their broader vision of what America should be ..... We need somebody who's got the heart--the empathy--to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old--and that's the criteria by which I'll be selecting my judges.

He spoke very well in that quote about the empathy those of us who were elected ought to have, but I think he spoke incorrectly about what judges should have. And when the President then nominated Judge Sotomayor to the Supreme Court, he did that with the belief that she meets his empathy standard.

President Obama's empathy standard has been widely criticized as contrary to the proper role of judges--and that is my point--and that is because an empathy standard necessarily connotes standards of impartiality. That is a very radical departure from our American tradition of blind impartial justice. In fact, even Judge Sotomayor repudiated President Obama's empathy standard at her confirmation hearing.

A judge's impartiality is so critical to his or her duty as an officer in an independent judiciary that it is mentioned three times in the oath of office for Federal judges. Every judge swears ``to administer justice without respect to persons,'' to ``do equal right to the poor and to the rich,'' and to ``faithfully and impartially discharge and perform all [his] duties.'' That is from the oath judges take. Therefore, empathetic judges who choose to embrace their personal biases cannot uphold
their sworn oath.
...

No matter what you call it--empathy, compassion, personal bias, or favoritism--it can have no place in the decision making process of a judge--it can have a place in decision making by a Senator--but especially in the case of the judicial branch, notably the Supreme Court or a Supreme Court Justice.

While justice is not an automated or mechanical process, it also is not a process that permits a patchwork of cases where the outcome is determined not by the law but by the judge's personal predilections. Judges may differ on what the law is, but they should never reach a conclusion because of a difference in ideology or because of their empathy for one of the parties.

An empathy standard for judging would betray the very cause of equality that it purports to champion by creating classes among our citizens in the eyes of the law. That is what is so dangerous about President Obama's standard and why we should be cautious in deferring to his choices for the judicial branch. That is why we should continue to assess judicial nominees based on their fidelity to the rule of law and not on some well-intentioned hope or belief that the personal biases they will rely on in judging will be the right ones.

...
I said this in the Judiciary Committee, and I repeat it now on the floor. Only time will tell which Judge Sotomayor will sit on the Supreme Court. Is it the judge who proclaimed that the court of appeals is where ``policy is made,'' or is it the nominee who pledged ``fidelity to the law?'' Is it the judge who disagreed with Justice O'Connor's statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama's empathy standard?
Only time will tell.

2009-08-06 - Jeff Sessions
The debate over Judge Sotomayor's nomination began with President Obama's radical new vision for America's court system. According to the President, all nominees to the Federal bench would now have to meet an ``empathy standard.'' This standard requires judges to reach their most difficult and important decisions through the ``depth and breadth of [their] empathy'' and ``their broader vision of what America should be.'' This is a stunning ideology. It turns law into politics. The President of
the United States is breaking with centuries of American legal tradition to enter a new era where a judge's personal feelings about a case are as important as the Constitution itself.

The President's empathy standard is much more than a rhetorical flourish. It is a dangerous judicial philosophy where judges base their rulings on their social, personal, and political views. It is an attempt to sell an old, discredited activist philosophy by marketing it under a new label. It is this activist philosophy, now under the guise of empathy, that has led judges to ban the Pledge of Allegiance because it contains the words ``under God,'' to interpret the Constitution on the basis of
foreign laws, to create a new right for terrorists who attacked the United States while robbing American citizens of their own rights to engage in activities such as silent prayer.

That philosophy also helps explain why Judge Sotomayor's panel of Federal judges allowed the city of New Haven to strip 18 firefighters of their eligibility for promotion on the basis of their race. It explains why judges have interpreted the second amendment to permit cities and States to ban guns despite the Constitution's clear language: ``the right of the people to keep and bear arms ..... shall not be infringed.'' And it explains why judges have allowed government to seize private property
for private commercial development despite the Constitution's guarantee that private property may not be taken except for ``public use.''

The empathy standard may sound nice, but in reality, it is cruel. It is, in truth, a bias standard. The power to rule on empathy is the power to rule on prejudice, and the power to deny the rights of some is the power to deny the rights of any or of all. A judge embraces empathy at the expense of objectivity and equality and fairness.

Eighteen firefighters in New Haven worked, studied, and sacrificed to pass the city's promotion exam. But when the results did not fit a certain racial quota, the city leaders unceremoniously scrapped the results. The firefighters put their faith in the system, and the system let them down. So they took their case to court. But Judge Sotomayor summarily dismissed their case in a one-paragraph order that did not even consider their civil rights claims. But the Judge Sotomayor who testified before
the Committee did not effectively explain her ruling to deny these firefighters their day in court.

She also did her best to distance herself from the activist philosophy she has so long spoken of and championed. But it was an unconvincing effort. I believe she failed to offer a credible explanation for her critically important rulings that would eviscerate gun rights and property rights. She failed to offer a credible explanation of her policy role in an advocacy group that took extreme positions when pursuing racial quotas, advocating that the Constitution requires that the government fund
abortions and opposing reinstatement of the death penalty. Her effort to rebrand her judicial approach stretched the limits of credulity. As one editorial page opined, her testimony was ``at times uncomfortably close to disingenuous.''

Nevertheless, I believe we have had a deeply valuable public discussion. By the end of the hearing, not only Republicans and not only Democrats but the nominee herself ended up rejecting the very empathy standard the President used when selecting her. This process reflected a broad public consensus that judges should be impartial, restrained, and faithfully tethered to the law and the Constitution.

I think it will now be harder to nominate activist judges. This is not a question of left versus right or Republican versus Democrat. This is a question of the true role of a judge versus the false role of a judge. It is a question of whether a judge follows the law as written or as they might wish it to be. It is a question of whether we live up to our great legal heritage or whether it is abandoned.

Empathy-based rulings, no matter how well-intentioned, do not help society but imperil the legal system that is so essential to our freedoms and so fundamental to our way of life. We need judges who uphold the rights of all, not just some, whether they are New Haven firefighters, law-abiding gun owners, or Americans looking for their fair day in court. We need judges who put the Constitution before politics and the right legal outcome before their desired personal political and social outcome.
We need judges who understand that if they truly care about society and want it to be strong and healthy, then they must help ensure our legal system is fair, objective, and firmly rooted in the Constitution.

Our 30th President, Calvin Coolidge, said of the Constitution:

No other document devised by the hand of man ever brought so much progress and happiness to humanity. The good it has wrought can never be measured.

I certainly believe he is correct. That document has given us blessings no people of any country have ever known, which is why real compassion is not found in the empathy standard but in following the Constitution.

Judge Sotomayor, however, has embraced the opposite view. For many years before her hearings, she has bluntly advocated a judicial philosophy where judges ground their decisions not in the objective rule of law but in the subjective realm of personal ``opinions, sympathies, and prejudices.''

 

2009-08-06 - Patrick Leahy

Some critics have attacked President Obama's nomination of Judge Sonia Sotomayor by contending he picked her for the Supreme Court to substitute empathy for the rule of law. These critics are wrong about the President; they are wrong about Sonia Sotomayor.
...
President Obama did not say that he viewed compassion or sympathy as a substitute for the rule of law. In fact, he has never said he would substitute empathy for the rule of law. That is a false choice. The opposition to this nomination is based on a false premise.

...
Judge Sotomayor is certainly not the first nominee to discuss how her background has shaped her character. Justice O'Connor has acknowledged, ``We are all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court.'' Everybody knows that, just as all 100 of us bring who we are to the Senate.

Many recent Justices have spoken of their life experiences as influential factors in how they approach the bench. Justice Alito and Justice Thomas, nominated by Republican
Presidents, did so famously at their confirmation hearings, and then they were praised by the Republican side of the aisle for doing so. Indeed, when the first President Bush nominated Justice Thomas to the Supreme Court, he touted him as an ``intelligent person who has great empathy.''

Some of those choosing to oppose this historic nomination have tried to justify their opposition by falsely contending that President Obama is pitting empathy against the rule of law. Not so. Not so. This President and this nominee are committed to the rule of law. They recognize the role of life experience not as a substitute for the law or in conflict with its mandates, but as informing judgment.

What is really at play is not a new Obama ``empathy standard'' with respect to judicial selection, but a double standard being applied by those who supported the nominations of Justice Alito and Justice Thomas.
 

2009-08-06 - Mitch McConnell
President Obama asked himself a different question when he was looking for a nominee. The question he asked is whether that person has the ability to empathize with certain groups. And as I have said, empathy is a fine quality. But in the courtroom, it is only good if a judge has it for you. What if you are the other guy? When he walks out of the courthouse, he can say he received his day in court. He can say he received a hearing. But he can't say he received justice.

At her hearings Judge Sotomayor was quick and even eager to repudiate the so-called empathy standard. But her writings reflect strong sympathy for it. Indeed, they reflect a belief not just that impartiality is not possible, but that it is not even worth the effort.

Judge Sotomayor's record of complex constitutional cases concerns me even more. Because in Judge Sotomayor's court, groups that didn't make the cut of preferred groups often found they ended up on the short end of the empathy standard, and the consequences were real.

One group that didn't make the cut in Judge Sotomayor's court were those who needed the courts to enforce their first amendment rights to support candidates for political office free from government interference. She is free to express her personal opinions on this issue, as she did when she wrote that merely donating money to a candidate is akin to bribery.

....

And her ruling in this case fit an all-too-familiar pattern: she kicked the aggrieved party's serious constitutional claims out of court in an unsigned, unpublished, summary order, with only a brief explanation as to why.

These important cases illustrate the real-world consequences of the empathy standard, in which judges choose to see certain facts but not others, and in which it's appropriate for judges to bring their personal or political views to bear in deciding cases. Lieutenant Ben Vargas, one of the firefighters who did not fare well under the empathy standard, may have put it best. Speaking of himself and the other plaintiffs in that case, he said,


We did not ask for sympathy or empathy. We asked only for evenhanded enforcement of the law, and ..... we were denied that.

2009-09-17 - Sessions on Hamilton

 Judge hamilton's appointment is a significant one. Instead of embracing the constitutional standard of jurisprudence, judge hamilton's has embraced president obama's empathy standard. Indeed, he said as much in his answer to questions for the record following his confirmation hearing in the judiciary committee, on which i sit. He rejects the idea that the role of a judge is akin to that of a -- of an umpire who calls balls and strikes in a neutral manner.

Rather, he believes that a judge will -- quote -- "reach different decisions from time to time taking into account what has happened and its effect on both parties and what are the practical consequences." judge hamilton also appears to have embraced the idea of a living constitution.

And the last time i was at the archives building, i saw a parchment from 1789 that was not breathing. That's a document, it's a contract, guarantees certain rights to every American, and judges around empowered to rewrite it to make it say what they think it ought to say today. In a speech in 2003, he indicated -- this is judge hamilton -- that a judge's role included writing footnotes to the constitution.

2009-09-29 - Jeff Sessions on Viken

He stated that he believes he fits President Obama's standard for the types of judges he will nominate to the Federal courts; that is, he meets the President's ``empathy standard.''

President Obama described that standard as follows:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a teenage mom, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I am going to be selecting my judges.


In 2005, when then-Senator Obama was in the Senate and he explained on the floor his vote against Chief Justice John Roberts, who I think is one of the finest nominees we have seen in decades and whose testimony before the Judiciary Committee was stunning in its impressiveness and his grasp of the legal issues, his comprehensive knowledge of how the Court worked, and cases--there was not a case brought up that he didn't seem to fully know about. Virtually every case the Supreme Court had ever
written he seemed to be knowledgeable about. It was just a tour de force. Senator Obama voted against Judge Roberts and stated that 5 percent of cases are determined by ``one's deepest values and core concerns ..... and the depth and breadth of one's empathy.'' We can only take this to mean
that the President believes that in 5 percent of all cases, judges should not set aside their personal beliefs, biases, or experiences. I think this is a radical and a dangerous departure from the most important pillar, the fundamental pillar of the judicial system--judicial impartiality.

Whatever the empathy standard is, it is not law, and we have courts of law in this country. Whenever a judge employs his personal beliefs, biases, or experiences to make a decision that favors one party, is it not true that he necessarily has, therefore, disfavored the other party as a result of his personal beliefs and biases? For every litigant who benefits from the judge's so-called empathy, there is a litigant who loses not on the basis of law but because the judge did not identify with them.

When people are nominated to our Federal bench, we ask them to take a judicial oath before they take office. The oath embodies the time-honored American tradition of blind justice. The oath says this:

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 ..... under the Constitution and laws of the United States, so help me God.

I am pleased to say the Supreme Court has not yet struck down ``so help me God'' in the oath, and hopefully they never will. I think the President's standard for judicial nominees plainly conflicts with that oath.

We have had a big discussion about that, and it is not a little bitty matter. It is not a small matter. Judges take the oath to be impartial. I practiced law in Federal court for many years, and I have always believed and expected that a judge who heard my case would rule on the law fairly and objectively. If I lost and did not have sufficient law or evidence and logic to support my position, I did not expect to prevail. That is the kind of concept that underlies American justice.

Aside from nominee David Hamilton, almost every one of President Obama's nominees, including Justice Sotomayor, has rejected outright the empathy standard. So at first blush, I found Mr. Viken's answer that he believes he fits that standard to be concerning. However, his answers to questions we submitted to him for the record provide maybe a more complete view. This is what he said in his answer in writing:

A judge's consideration of a case must always be governed by impartiality, evenhandedness, attention to the facts presented by the parties, and respect for established law. Empathy is a personal characteristic which may assist a judge in analyzing the human circumstances which bring people before the court. But the law and not the personal experiences of jurists is the path to justice in considering each case.

I think that is OK. I am not sure how you can have any empathy--empathy is a personal characteristic, maybe? I would hate to disagree with the President who nominated me, but that is a pretty good statement overall.

He also stated he believes that, ``The role of a Federal district judge encompasses diligent legal scholarship''--that is true--``a strong work ethic''--true--``impartial and dispassionate consideration of proven facts and reasoned legal arguments, fidelity to binding and persuasive precedent, and respect for all who appear before the court.''

I think that is good statement. I think if he will conduct himself on the bench according to those standards he will do well. And I believe he will.

I am glad to see he is an honors graduate, but he didn't go to some of these schools, Senator Johnson, he went to school in South Dakota; he has practiced law before judges over the years, a lot of practice; and in the course of that, you learn that judges really do--the good judges--consistently try to reach the right dispassionate result.

I think he may have made some statements about empathy that are not perfect, but my judgment is that he has been in the courtroom and he has been before good judges. I am hopeful he is going to be a very good judge.