Does Judicial Empathy Risk...

• Imposing the will or subjectivity of the judge?
• Including some defendants or plaintiffs while excluding others?
• Creating a framework that is too flexible or outside our laws?
• Removing the judge from mainstream values?
• Jeopardizing the interpersonal boundaries among judges, lawyers, defendants, and plaintiffs?

I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court. In fulfilling our advise and consent role, of course, we must evaluate Judge Sotomayor's fitness to serve on the merits, not on the basis of her ethnicity.

With a background that creates a prima facie case for confirmation, the primary question I believe Judge Sotomayor must address in this hearing is her understanding of the role of an appellate judge. From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but who, in her opinion, should win. The factors that will influence her decisions apparently include her 'gender and Latina heritage' and foreign legal concepts that get her 'creative juices going.'

What is the traditional basis for judging in America? For 220 years, presidents and the Senate have focused on appointing and confirming judges and justices who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve disputes between parties.

This principle is universally recognized and shared by judges across the ideological spectrum. For instance, Judge Richard Paez of the Ninth Circuit--with whom I disagree on a number of issues--explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her now-famous remarks about a 'wise Latina woman' making better decisions than other judges. Judge Paez described the instructions that he gave to jurors who were about to hear a case. 'As jurors,' he said, 'recognize that you might have some bias, or prejudice. Recognize that it exists, and determine, biases and passions—then you should not sit on the case.'

And then Judge Paez said: 'The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in the office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that—-I am viewed as a Latino judge--as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.'

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.

The question for this committee is whether Judge Sotomayor agrees with President Obama's theory of judging or whether she will faithfully interpret the laws and Constitution and take seriously the oath of her prospective office.

Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices.

The 'wise Latina woman' quote, which I referred to earlier, suggests that Judge Sotomayor endorses the view that a judge should allow her gender-, ethnic-, and experience-based biases to guide her when rendering judicial opinions. This is in stark contrast to Judge Paez's view that these factors should be 'set aside.'

In the same lecture, Judge Sotomayor posits that 'there is no objective stance but only a series of perspectives—-no neutrality, no escape from choice in judging' and claims that '[t]he aspiration to impartiality is just that—-it's an aspiration because it denies the fact that we are by our experiences making different choices than others.' No neutrality, no impartiality in judging? Yet, isn't that what the judicial oath explicitly requires?

And according to Judge Sotomayor, 'Personal experiences affect the facts that judges choose to see...I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.'

Judge Sotomayor clearly rejected the notion that judges should strive for an impartial brand of justice. She has already 'accepted' that her gender and Latina heritage will affect the outcome of her cases. This is a serious issue, and it's not the only indication that Judge Sotomayor has an expansive view of what a judge may appropriately consider. In a speech to the Puerto Rican ACLU, Judge Sotomayor endorsed the idea that American judges should use 'good ideas' found in foreign law so that America does not 'lose influence in the world.'

As I've explained on the floor of the Senate, the laws and practices of foreign nations are simply irrelevant to interpreting the will of the American people as expressed through our Constitution. Additionally, the vast expanse of foreign judicial opinions and practices from which one might draw simply gives activist judges cover for promoting their personal preferences instead of the law. You can, therefore, understand my concern when I hear Judge Sotomayor say that unless judges take it upon themselves to borrow ideas from foreign jurisdictions, America is 'going to lose influence in the world.' That's not a judge's concern.

Some people will suggest that we shouldn't read too much into Judge Sotomayor's speeches and articles—-that the focus should instead be on her judicial decisions. I agree that her judicial record is an important component of our evaluation, and I look forward to hearing why, for instance, the Supreme Court has reversed or vacated 80 percent of her opinions that have reached that body, by a total vote count of 52 to 19.

But we cannot simply brush aside her extrajudicial statements. Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority--the Supreme Court. If confirmed, there will be no such restraint that would prevent her from—-to paraphrase President Obama—-deciding cases based on her heart-felt views. Before we can faithfully discharge our duty to advise and consent, we must be confident that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law.
[End of quote.]

Well, thank you. I've learned something already, the Schumer conservative standard. And we'll--we'll see how that works. No Republican would have chosen you, Judge; that's just the way it is. We would have picked Miguel Estrada. We would all have voted for him. And I don't think anybody on that side would have voted for Judge Estrada, who is a Honduran immigrant, who came to this country as a teenager, graduated from Columbia magna cum laude, Harvard, 1986, magna cum laude and Law Review editor, a stellar background like yours, and that's just the way it was. He never had a chance to have this hearing. He was nominated by President Bush to the D.C. Circuit Court of Appeals, which I think most people agree is probably the second highest court in the land, and he never had this day. So the Hispanic element of this hearing's important, but I don't want it to be lost that this is mostly about liberal and conservative politics more than it is anything else.

And having said that, there are some of my colleagues on the other side that voted for Judge Roberts and Alito, knowing they would not have chosen either one of those, and I will remember that. Now, unless you have a complete meltdown, you're going to get confirmed.
(LAUGHTER)
And I don't think you will, but, you know, the drama that's being created here is--is--is interesting.

And--and my Republican colleagues who vote against you I assure you could vote for a Hispanic nominee. They just feel unnerved by your speeches and by some of the things that you've said and some of your cases. Now, having said that, I don't know what I'm going to do yet, but I do believe that you, as an advocate with a Puerto Rican defense legal fund, that you took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. Now, that's a pretty extreme thing to say, but I think it was heartfelt.

I would look at it the other way. To take my taxpayer dollars and provide an abortion to--to pay for abortion I disagree with is pretty extreme. So there's two ways of looking at that.

You were a prosecutor, but your organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities.

Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group, in my opinion, than the Puerto Rican defense legal fund when it came to advocacy. What I hope is, if we ever get a conservative president and they nominate someone who has an equal passion on the other side, that we will not forget this moment, that you could be the NRA general counsel and still be a good lawyer.

My point is, I'm not going to hold it against you or the organization for advocating (inaudible) from which I disagree. That makes America a special place. I would have loved to have been in those cases on the other side. I hope that wouldn't have disqualified me.

Now, when it comes to your speeches, that is the most troubling thing to me, because that gives us an indication, when you're able to get outside the courtroom without the robe, an insight into how you think life works, and this wise Latino comment has been talked about a lot.

But I can just tell you one thing: If I had said anything remotely like that, my career would have been over. That's true of most people here. And you need to understand that, and I look forward to talking with you about that comment.

Does that mean that I think that you're racist? You've been called some pretty bad things. No. It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don't think it makes you better than anyone else.

Now, when I look at your record, there is a lot of truth to what Senator Schumer said. I don't think you've taken the opportunity on the circuit to--to be a cause-driven judge. But what we're talking about here today is, what will you do when it comes to making policy?

I'm pretty well convinced I know what you're going to do. You're probably going to decide cases differently than I would. So that brings me back to, what am I supposed to do knowing that?

I don't think anybody here worked harder for Senator McCain than I did, but we lost, and President Obama won. And that ought to matter. It does to me. Now, what standard do I apply? I can assure you that if I applied Senator Obama's standard to your nomination, you--I wouldn't vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging.

He said something about the 5 percent of the cases that we're all driven by. He said something to the effect, in those difficult cases, the critical ingredient is applied by what is in the judge's heart. Well, I have no way of knowing what is in your heart any more than you have knowing what's in my heart. So that to me is an absurd, dangerous standard.

Maybe something good could come out of these hearings. If we start applying that to nominees, it will ruin the judiciary. I have no idea what's in your heart anymore than you have an idea what's in my heart, and I think it takes us down a very dangerous road as a country when we start doing that.

Now, there was a time when someone like Scalia and Ginsberg got 95-plus votes. If you were confused about where Scalia was coming down as a judge, you shouldn't be voting, anymore than if you were a mystery about what Justice Ginsberg was going to in these 5 percent of the cases. That is no mystery. There's some aspect of you that I'm not sure about that gives me hope that you may not go down the--Senator Feingold's road when it comes to the war on terror, and we'll talk about that later on.

But generally speaking, the president has nominated someone of good character, someone who has lived a very full and fruitful life, who is passionate. From day one, from the time you got a chance to showcase who you are, you've stood out and you've stood up and you've been a strong advocate and you will speak your mind.

The one thing I'm worried about is that if we keep doing what we're doing, we're going to deter people from speaking their mind. I don't want milquetoast judges. I want you to be able to speak your mind, but you've got to understand that when you gave these speeches as a sitting judge, that was disturbing to me.

I want lawyers who believe in something and are willing to fight for it and I don't want the young lawyers of this country feeling like there's certain clients they can't represent because when they come before the Senate, it will be the end of their career.

So I don't know how I'm going to vote, but my inclination is that elections matter. And I'm not going to be upset with any of my colleagues who find that you're a bridge too far, because in many ways, what you've done in your legal career and the speeches you've made give me great insight as to whether--where you'll come out on these 5 percent of the cases.

But President Obama won the election and I will respect that. But when he was here, he set in motion a standard, I thought, that was more about seeking the presidency than being fair to the nominee.

When he said, "The critical ingredient is supplied by what is in the judge's heart," translated, that means, "I'm not going to vote against my base, because I'm running for president."

We've got a chance to start over. I hope we'll take that chance. You will be asked hard questions and I think you expect that, and my belief is that you will do well, because whether or not I agree with you on the big theme to live is not important.

The question for me is have you earned the right to be here and if I give you this robe to put you on the Supreme Court, do I believe, at the end of the day, that you will do what you think is best, that you have courage, and that you will be fair.

Come Thursday, I think I'll know more about that. Good luck.
[End of quote.]

It is not uncommon to observe a worker so identified with a child in a family conflict situation that the worker pushes the parent to understand the child's feelings while simultaneously expressing very little understanding of the feelings of the parent. Providing some genuine empathy for the parent's dilemma is often the key to helping the parent to understand the struggles of the child.

There are a number of reasons why it can be difficult for a worker to express empathy with a client. The capacity to be in touch with the client's feelings is related to the worker's ability to acknowledge his or her own. Before a worker can understand the power of emotion in the life of the client, it is necessary to discover its importance in the worker's own experiences. Workers will often have difficulty in expressing empathy with the feelings of the client in specific areas that touch upon their own lives. Workers are human, facing all of the stresses and difficulties associated with daily living, including periods of life crisis. When a worker hears his or her own difficult feelings being expressed by a client in an interview, the capacity for empathy can be blunted. Another major block block to empathy can be the worker's authority over the client. For example, a worker who has apprehended (removed) a child in an abuse situation may find empathic responses to the client blocked at the time when they may be most needed.
[End of quote.]

I testify today not as a wise Latina woman but an American who believes that skin color and national origin should not determine who gets a job, a promotion or a public contract or who gets into college or receives a fellowship.

My message today is straightforward. Mr. Chairman, do not vote to confirm this nominee. I say this with some regret, because I believe Judge Sotomayor's personal story is an inspiring one, which proves that this is truly a land of opportunity, where circumstances of birth and class do not determine whether you can succeeded.

Unfortunately, based on her statements both on and off the bench, I do not believe Judge Sotomayor shares that view. It is clear from her record that she has drunk deep from the well of identity politics.

I know a lot about that well, and I can tell you that it is dark and poisonous. It is, in my view, impossible to be a fair judge and also believe that one's race, ethnicity and sex should determine how someone will rule as a judge.

Despite her assurances to this committee over the last few days that her "wise Latina woman" statement was simply a, quote, "rhetorical flourish fell flat," nothing could be further from the truth.

All of us in public life have, at one time or another, misspoken. But Judge Sotomayor's words weren't uttered off the cuff. They were carefully crafted, repeated, not just once or twice, but at least seven times over several years.

As others have pointed out, if Judge Sotomayor were a white man who suggested that whites or males made better judges, again, to use Judge Sotomayor's words, quote, "Whether born from experience or inherent physiological or cultural differences," end quote, "we would not be having this discussion. Because the nominee would have been forced to withdraw once those words became public."

But, of course, Judge Sotomayor's offensive words are just a reflection of her much greater body of work as an ethnic activist and judge.

Identity politics is at the core of who this woman is. And let me be clear here. I'm not talking about the understandable pride in one's ancestry or ethnic roots, which is both common and natural in a country as diverse and pluralistic as ours.

Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions and the belief that members of one's own group are victims in a perpetual power struggle with the majority.
[End of quote.]

From her earliest days at Princeton University, and later, Yale Law School, to her 12-year involvement with the Puerto Rican Legal Defense and Education Fund, to her speeches and writings, including her jurisprudence, Judge Sotomayor has consistently displayed an affinity for such views.

As an undergraduate, she actively pushed for race-based goals and timetables for faculty hiring. In a much-praised senior thesis, she refused to identify the United States Congress by its proper name, instead referring to it as the North American Congress or the Mainland Congress.

During her tenure as chair of the Puerto Rican Legal Defense and Education Fund's Director Litigation Committee, she urged (inaudible) seeking lawsuits challenging the civil service exams, seeking race-conscious decision-making similar to that used by the city of New Haven in Ricci.

She opposed the death penalty as racist. She supported race-based government contracting. She made dubious arguments in support of bilingual education and more broadly in trying to equate English language requirements as a form of national origin discrimination. As a judge she dissented from an opinion that the Voting Rights Act does not give prison inmates the right to vote.

And she has said that as a witness--eyewitnesses' identification of an assailant may be unconstitutional racial profiling in violation of the equal protection clause, if race is an element of that identification. Finally, she has shown a willingness to let her policy preferences guide her in the Ricci case.

Although she has attempted this week to back away from some of her own intemperate words and has accused her critics of taking them out of context, the record is clear. Identity politics is at the core of Judge Sotomayor's self-definition. It has guided her involvement in advocacy groups, been the topic of much of our [sic] public writing and speeches, and influenced her interpretation of law.

There is no reason to believe that her elevation to the Supreme Court will temper this inclination, and much reason to fear that it will play an important role in how she approaches the cases that will come before her, if she is confirmed.
[End of quotes.]

SOTOMAYOR: I'm attempting to answer your question, Senator, but our roles and the ones we choose to serve--your job is wonderful. It is so, so important. But I love that you're doing your job, and I love that I'm doing my job as a judge. I like mine better.

COBURN: I think I would like yours better as well, although I doubt that I could ever get to the stage of a confirmation process.
[End of quote.]

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