Media Matters: Politico ignores history of conservatives' citing importance of empathy in a judge





A May 26 Politico article reported, "President Barack Obama's first Supreme Court nominee, Second District Appeals Court Judge Sonia Sotomayor, began taking hits from the right as her nomination was announced Tuesday morning." Politico cited former Arkansas Gov. Mike Huckabee asserting, "The notion that appellate court decisions are to be interpreted by the 'feelings' of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion." Politico further cited Wendy Long, counsel for the Judicial Confirmation Network, claiming, "Sotomayor readily admits that she applies her feelings and personal politics when deciding cases." However, the Politico article did not point out that numerous Republicans have previously praised compassion as a judicial attribute, and highlighted the importance of the personal experiences of judicial nominees.

During his Supreme Court confirmation hearings, responding to Sen. Herb Kohl's (D-WI) question, "I'd like to ask you why you want this job?" Clarence Thomas stated in part: "I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does." From the September 12, 1991, hearing (accessed from the Nexis database, emphasis added):

SEN. KOHL: Judge Thomas, I'd like to ask you why you want this job?

JUDGE THOMAS: Senator, being nominated to the Supreme Court of the United States is one of the highest callings in our country. It is an opportunity, it is an entrustment, an entrusting of responsibility by the people of this country, by this body to make some of the most difficult and important decisions in our country. It is an opportunity to serve, to give back and that's been something that has been important to me. And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I."

So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court. And I think it is a tremendous responsibility and it's a humbling responsibility and it's one that if confirmed, I will carry out to the best of may abilities.

SEN. KOHL: All right, that's good. Judge Thomas, if I understand you correctly, you are going to leave behind almost all of your views about what type of society we ought to be and what type of policies we ought to apply and two questions.

First, why after 20 years in the forefront of these battles do you want to leave all of this behind? And the second question is, if you do leave so much of this behind, what's left?

JUDGE THOMAS: Though it may sound rather strange to some individuals, the kind of fighting and infighting and certainly the difficulty of battle, those kinds of battles in the political process I think are wearing, and so it's not the confrontation that I ever relished or enjoyed. In fact, that is the opposite of my personality. I like to try to find consensus. So I don't miss and did not miss on this court having those kinds of battles. We have reasoned, constructive debate on the court.

But with respect to the underlying concerns and feelings about people being left out, about our society not addressing all the problems of people, I have those concerns. I'll take those to the grave with me. I am concerned about the kids of those buses, I told you. I am concerned about the kids who didn't have the strong grandfather and strong grandparents to help them out of what I would consider a terrible, terrible fate. But you carry that feeling with you. You carry that strength with you. You carry those experiences with you. I don't think you have to carry the battles with you. It's a different way.

Indeed, then-President George H.W. Bush cited Thomas' "great empathy" in his remarks announcing his selection of Thomas to serve on the Supreme Court. Moreover, in former Bush administration lawyer John Yoo's review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins) -- in which Yoo praised Thomas' "unique, powerful intellect" and commitment to "the principle that the Constitution today means what the Framers thought it meant" -- Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.

Further, several former Republican senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), have previously cited compassion as a qualification for judicial confirmation. For instance, during the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."

Similarly, during the September 30, 1997, Senate Judiciary Committee hearing on the confirmation of several judicial nominations, D'Amato stated: "I predicted to this committee, almost five years ago, that Judge [Sonia] Sotomayor would be an exemplary, outstanding justice. She has demonstrated that, repeatedly. She has shown compassion, wisdom, one of the great intellects on the court." Additionally, during Chief Justice John Roberts' confirmation hearing, DeWine stated: "We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been." DeWine continued: "We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people."

From the May 26 Politico.com article:

President Barack Obama's first Supreme Court nominee, Second District Appeals Court Judge Sonia Sotomayor, began taking hits from the right as her nomination was announced Tuesday morning, with top conservatives describing her as a hardline liberal who would impose her personal agenda on the Court.

Former Arkansas Gov. Mike Huckabee called Sotomayor's appointment "the clearest indication yet that President Obama's campaign promises to be a centrist and think in a bipartisan way were mere rhetoric."

"Sotomayor comes from the far left," Huckabee said in a statement. "The notion that appellate court decisions are to be interpreted by the 'feelings' of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.

[...]

The Judicial Confirmation Network circulated a memo from its counsel, Wendy Long, calling Sotomayor a "favorite of far-left special interest groups" who will "indulge ... left-wing policy preferences instead of neutrally applying the law."

"Sotomayor readily admits that she applies her feelings and personal politics when deciding cases," Long charged, citing as evidence Sotomayor's ruling in Ricci v. DeStefano, a Connecticut-based case about racial preferences, and a 2002 speech the judge delivered at Berkeley.


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