Supreme Court Nominations: The "Empathy" Litmus Test?

Judicature, May/June 2011 | Go to article overview

Supreme Court Nominations: The "Empathy" Litmus Test?


Judicial selection during die first two years of Obama's term was highlighted by his opportunity to name two new justices to die United States Supreme Court. However, well before those opportunities arose Obama signaled what he would look for in a potential nominee in his chapter tided "Our Constitution" in his book, The Audacity oj Hope, where he oudined his vision of constitutional interpretation and the proper role of judges. The chapter was well reasoned and persuasively argued, yet just a year later it was eclipsed by a brief remark then nominee Obama made while on the campaign trail. During remarks to Planned Parenthood on July 17, 2007, he stated the following, which would come to define both of his Supreme Court nominations:1

When Roberts came up, and everybody was saving, 'You know, he's very smart and he seems like a very decent man, and he loves his wife and [laughter] you know he's good to his dogs. He's so well qualified.' I said, 'Look, that's absolutely true, and in, ..die overwhelming number of Supreme Court decisions, that's enough. You read die statute. You look at the case law, and most of the time die law is pretty clear - 95% of the time....

But it's those 5% of die cases dial really count And in those 5% of the cases what you got to look at it is: What is in die justice's heart?

You knowjustice Roberts said he saw himself just as an umpire. But die issues that come before the court are not sport. They're life and death. And we need somebody who's got die», empathy to recognize what it's like to be a young, teenaged mom; die empathy to understand what it's like to be poor or African American or gay or disabled or old. And mat's die criteria by which I'm going to be selecting my judges.

Thus began the national debate about an "empathy" litmus test.

Obama was in office only three months when Justice David Souter announced he wouid retire at the end of die term. Originally, speculation centered on Justice Rudi Bader Ginsburg retiring as she revealed her diagnosis of and subsequent surgery for pancreatic cancer, a particularly aggressive form of cancer. But her positive prognosis and rather quick return to the bench forestalled any discussions of Supreme Court nominations. As a result, many were surprised when Justice Souter's plans to retire were leaked to die press on April 29, 2009. Although Justice Souter still was reasonably young by Supreme Court standards (69), in very good healtfi, and had only served 19 years (a comparatively short tenure) he had privately expressed a desire to return to his native New Hampshire. By some accounts he also still was upset by the Court's decision in Bush v. Gore.2

Only a select few people at the highest levels in the White House and the Senate know when exacdy Justice Souter communicated to the White House his intention to retire, though we now know die White House counsel's office was already at work on generating a list of potential nominees. By the time President Obama formally acknowledged Justice Souter's pending retirement on May 1, 2009, he had a working list of about 40 names and Judge Sonia Sotomayor was at the top of that list. During his remarks about the retirement, Obama reiterated his focus on empathy; his remarks leave one wondering if he had judge Sotomayor in mind when he said:3

I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands diat justice isn't about some abstract legal tiieory or footnote in a case book; it is also about how our laws affect die daily realities of people's lives - whedier they can make a living and care for their families; whether they feel safe in dieir homes and welcome in their own nation. I view dial quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingrethent for arriving at just decisions and outcomes.

This time however, in light of the vacancy on the Supreme Court, Republicans focused on die meaning of "empathy. …

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