Federal Courts and Nominations

The Missing Case For Empathy


Democrats need to lay out clearly a progressive judicial philosophy, experts say.

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.

Neither the Pew Research Center for the People and the Press nor Gallup has asked Americans about judicial philosophy recently, primarily because the topic is hard to articulate in a survey format and is of interest only to a niche audience, both polling companies said. But polling of 900 registered voters in June by Fox News seems to bear out Brand’s point that the conservative message enjoys more popular support than the liberal one. Just over 70 percent of respondents — including 61 percent of Democrats — said that judges “should only interpret the law and not take into account their own personal views and experiences.”

Liberal legal scholars dispute the Republican interpretation of such results. They even question the accuracy of Republican characterizations of the GOP position and emphasize that a judge’s letting feelings affect her decisions is different from a nominee acknowledging that experiences inherently influence her views. “In the past 30 years, there has been a very successful conservative revolution in the approach of judging,” said Andrew Pincus, a partner at Mayer Brown in Washington who has argued 19 cases before the Supreme Court. “That’s due partially as a result of some very good verbal description of their views that have resonated with the public.”

Left-leaning experts are disappointed that Democrats didn’t capitalize on the opportunity afforded by the hearings to present an alternative to the conservative philosophy. “Democrats need to do a better job in setting a vision, laying out how the Constitution protects equality and liberty, and pointing out what Republicans are doing that is internally incoherent,” said William Marshall, deputy White House counsel in the Clinton administration who is now a professor at the University of North Carolina School of Law. Geoffrey Stone, University of Chicago law professor, said that the White House sacrificed this discussion to ensure an easy confirmation. “They missed a very important opportunity, and I have no doubt they missed it intentionally,” said Stone, who was dean of the law school when Obama joined its faculty in the 1990s.

The nominee herself, coached by the administration, helped pre-empt any substantive discussion about a progressive judicial vision by retreating from her earlier remarks on empathy and the notion of a “living” Constitution. When Sen. Lindsey Graham, R-S.C., asked Sotomayor during the hearings if she believed the Constitution is a “living, breathing, evolving document,” she responded: “The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. It is a process — an amendment process that is set forth in the document. It doesn’t live other than to be timeless by the expression of what it says. What changes is society.”

Doug Kendall, founder and president of the left-leaning Constitutional Accountability Center, said that Sotomayor “was smart in retreating [from] both empathy and the idea of a living Constitution, which can be construed as suggesting that judges can rule based on their heart or political inclinations.” The problem, Kendall said, was that Sotomayor made “very little effort … to explain how the law itself and the Constitution point in a more progressive direction.”

So, left with a nominee who refused to embrace any type of liberal philosophy, what did Democrats do? “They played defense,” said Brian Darling, director of Senate relations at the conservative Heritage Foundation. Their job was to “rehabilitate Sotomayor when they had their opportunity to ask questions, and they seemed to do that effectively. She’s going to be confirmed.”

Some liberals did cite the opening remarks of committee member Sheldon Whitehouse, D-R.I., as an exception, crediting him with endorsing a more explicitly progressive take on the law than did his colleagues. When Whitehouse discussed the “difficult circumstances faced by the less powerful among us,” he was placing much the same emphasis on empathy that Obama expressed in his speeches opposing Alito and Roberts. Whitehouse continued: “If you have empathy for those people in this job, you are doing nothing wrong. 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.”

Many of the other Democratic committee members, such as Arlen Specter of Pennsylvania and Amy Klobuchar of Minnesota, avoided questions about Sotomayor’s judicial philosophy and instead concentrated on her life story and other issues. But political undertones were at work here, too, said Robert O’Neil, who clerked for Justice William Brennan and is founding director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia. “For Democratic senators from more-moderate states than Rhode Island, it might have been an unnecessary risk” to discuss judicial philosophy, O’Neil said. “I could see them saying: ‘Whitehouse said it, he spoke for us.’ “

In the end, Democrats appear poised to confirm Sotomayor by the August recess, as the administration wishes. And Obama will have won a mostly trouble-free confirmation for his first Supreme Court nominee. Such an outcome could help with other, more politically expensive items down the road. But whether the president can claim victory on another goal — a bipartisan vote — is in the eye of the beholder: Six of the seven GOP members on the Senate Judiciary panel voted against her confirmation this week in committee, and, as of July 29, more than half of the Senate Republican Conference had announced they will vote no. By forgoing a larger judicial philosophy discussion, though, the administration has managed to shield the handful of GOP senators who are voting in favor of her confirmation. At press time, these Republicans have said they will vote yea: Lindsey Graham of South Carolina (a Judiciary member); Susan Collins and Olympia Snowe of Maine; Richard Lugar of Indiana; and Mel Martinez of Florida.

For his part, Obama didn’t once personally tune in to the hearings, and he publicly engaged in the process a total of three times since his May 26 nomination of Sotomayor, according to the White House. Those mentions include his May 29 weekly address, an interview with NBC’s Brian Williams around that same time, and a courtesy call to his nominee to wish her luck before the hearings. She apparently did not need it.

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