Friday, July 31, 2009 12:32 PM
The Missing Case For Empathy
From this week's issue of National Journal:
It was the man who never set foot in Hart 216 who came out on top. President Obama got exactly what he wanted out of his nomination of Sonia Sotomayor to the Supreme Court: a fairly quick, relatively smooth, sort-of-bipartisan process that spent minimal political capital. But the White House's gain could also be the Democratic Party's loss.
With an overwhelming majority in the Senate, a still-popular president, and a nomination that wasn't expected to tilt the Court's ideological balance, the stage seemed set for a full-throated defense of liberal judicial philosophy from Democrats on the Judiciary Committee. According to a White House aide, Obama's goal for the hearings was simple: get his nominee confirmed with bipartisan support. That meant it was in the administration's best interest not to provoke a larger discussion of judicial vision.
Democratic committee senators "had a president and nominee who did not defend or promote the progressive judicial philosophy that they both previously articulated and embraced in speeches and writings," said Leonard Leo, whom George W. Bush tapped to help lead outside groups in supporting the nominations of John Roberts and Samuel Alito. "They had their hands tied and could not make the kinds of statements they would normally make."
During questioning by panel member Jon Kyl, R-Ariz., the nominee herself illustrated the gulf between the White House and Senate Democrats most clearly when she repudiated Obama's analysis of judging. Kyl asked Sotomayor during her confirmation hearings whether she agreed with the empathy standard laid out by then-Sen. Obama in opposing Bush's nomination of Roberts as chief justice in 2005. "No, sir," Sotomayor responded. "I wouldn't approach the issue of judging in the way the president does.... 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."
Rachel Brand, who as an assistant attorney general in the Bush administration was also involved with the nominations of Roberts and Alito, said that Sotomayor's direct denial "indicates a belief that it would be hard to get confirmed" if she had embraced Obama's empathy standard. "It's not something that resonates with the American public or senators," Brand said.
Subscribers to National Journal can continue reading this story here.
Lester Jackson, Ph.D.
Monday, August 3, 2009
Regarding the repeated claim that the Sotomayor hearings occurred on a conservative playing field: While liberals may not be content only with a sure Supreme Court vote for the results they want, it is almost painful that conservatives take comfort that the “president and nominee … did not defend or promote the progressive judicial philosophy that they both previously articulated….” Surely, they cannot credit “confirmation conversions” contravening numerous prior statements. They must expect that Sotomayor will not simply “apply the law” but will, instead, pursue an activist “empathy” agenda by saying the law means whatever she wants it to mean. There is nothing new in liberals pretending to be not out of step with a more conservative public.
More importantly, slogans (“activism” vs. “self-restraint”; “apply the law” vs. “make the law”) do not make clear to the public the real import of activism. For this, the critical factor is not judicial “philosophy” or “vision” but actual decisions. It is the latter that explain what the former is all about.
Lay people are not interested in academic and legalistic discussions. (Even Ricci questions in terms of “disparate impact” fell flat.*) Any good teacher knows that concrete examples are critical to getting a point across. Prior to the hearings, I suggested to groups opposing Sotormayor that she be asked about specific death penalty decisions and statements by justices. Although she was not, few issues can match capital punishment in providing easy-to-understand illustrations of activism (e.g., a convicted murderer must be allowed to successfully argue he should not be executed because he only endangers old ladies; justices contending rape can be unharmful and it is a "misnomer" to consider as victims the families (mere “third parties”) of girls brutalized, raped and murdered).
I have prepared questions** drawn from actual Supreme Court writings. No one should expect forthright answers by any activist nominee. The point is that, now and in the future, the questions be asked repeatedly of both judicial nominees and senators who confirm them. Just doing so would raise public awareness of what activist justices do (including causing new murders of ordinary law-abiding citizens by judicially spared previously convicted murderers).
* URL: http://ninthjustice.nationaljournal.com/2009/08/the-importance-of-disparate.php
** URL: http://www.tcsdaily.com/Article.aspx?id=071509A
Scott Stellven
Saturday, October 15, 2011
Interesting article. Yes, Congress is the one that makes the laws. I hope they're able to fix the *government *money *problems.
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