Life and Death of the 'Empathy Standard'

President Obama has lost more than he gained with the nomination of Judge Sonia Sotomayor to the United States Supreme Court.  Though Sotomayor’s confirmation is now behind us, any reasonable person who followed the hearings closely has to admit that the president’s entire approach to judicial nominations has been compromised.  

The famous “empathy standard” suffered a devastating blow at the hands of Senator Jeff Sessions (R-Ala.) who led the Republican charge that discredited it thoroughly in the hearings.

You have to remember that this is an approach that the president has been refining for years; he even used it to vote against Chief Justice Roberts and Justice Alito.  Here is what he said to justify his vote against the chief justice:

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, and he appears to be respectful of different points of view.  It is absolutely clear to me that Judge Roberts truly loves the law.  He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts (emphasis added).

But that’s where the law stops and that was not enough for then-Senator Obama.  He argued that in some cases a judge has to go beyond the law and rule “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.”  

President Obama brought this approach to his presidency, promising Planned Parenthood:

[W]e 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.

And he delivered.  In nominating Judge Sotomayor, President Obama chose someone who had argued for years that her background, gender and race play — and should play — a role in her judicial decisions.  Most people know that she actually hoped she reached better conclusions because she is a “wise Latina.”  And she had admitted, though somewhat reluctantly, that the Court of Appeals is “where policy is made.”  She truly embodied the “empathy standard.”

Many liberals tried to validate the president’s standard, while conservatives denounced it.  But then, by what some may call chance and our Founders would have called Providence, Sen. Sessions became the Ranking Minority Member of the Senate Judiciary Committee.  There was no one better suited to expose the fallacy and lawlessness of “empathy.”  His opening remarks set the tone for the entire proceedings:

[T]his hearing is important because I believe our legal system is at a dangerous crossroads.  Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views.  This is the compassionate system because this is the fair system.  

In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy. …

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’s more akin to politics, and politics has no place in the courtroom.

He exposed it in Sotomayor’s case law with the Ricci case:

It seems to me that in Ricci, Judge Sotomayor’s empathy for one group of firefighters turned out to be prejudice against another.

That is, of course, the logical flaw in the empathy standard.  Empathy for one party is always prejudice against another.

Led by Sen. Sessions, other Republican Senators spoke out.  Sen. Charles Grassley (R-Iowa) said it this way:

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.

President Obama clearly believes that you measure up to his empathy standard.  That worries me.

There was so much pressure put on Judge Sotomayor that the unthinkable happened: with her eyes on the prize, she conveniently ran as fast and as far as she could from her own statements and from the president’s standard.  Sen. Jon Kyl (R-Arizona) asked her point blank about her view of President Obama’s standard:

Sen. Kyl: 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 percent of the cases, the law will give you the answer, and the last five 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:  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.

Empathy? What empathy?  

Now that the hearings are over and liberals are realizing what they have done, expect them to go into emergency mode.  The defibrillator is out, and they’ll try to give the empathy standard “mouth-to-mouth,” but it’s too late.  They can try to hide the body, but they won’t be able to get rid of the smell.