Nobody could accuse Senate Republicans of showing their touchy-feely side Monday.
GOP members of the Senate Judiciary Committee took careful aim at Judge Sonia Sotomayor’s qualifications to be an associate justice of the Supreme Court by expressing their disdain for any judge using empathy when making judicial decisions.
First up, Senator Orin Hatch (R-Utah), who posed the question: “Must judges set aside, or may judges consider, their personal feelings in deciding cases?”
His fellow Republicans were quick to answer:
Senator Charles Grassley (R-Iowa): “This empathy standard is trouble to me. In fact, I’m concerned that judging based on empathy is really just legislating from the bench.”
Senator Jon Kyl (R-Arizona): “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.”
And Senator Jeff Sessions (R-Alabama): “Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom.”
Why the big concern about empathy?
Republicans, says trial and appellate attorney Paul Callan, “believe that empathy is a code word for activist judges. ... They’re trying to say that she’s going to decide cases on empathy rather than the law and that’s what they say is an activist judge.”
Callan says that a judge is more likely to use empathy in trial cases when extenuating circumstances might play a role in sentencing but it is less relevant when an appellate judge is reviewing a lower court decision. Callan believes that Democrats are over-emphasizing the importance of empathy at the Supreme Court level and that Republicans are under-estimating it’s value.
All this started shortly after President Obama nominated Sotomayor, when it was widely reported that she had given a speech about the wisdom of men vs. women deciding cases. “I would hope that a wise Latina woman,” she said, “with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life…”
The firestorm of criticism over this remark fueled Monday’s Republican chorus of criticism about empathy. So too did the president’s earlier rationale for picking a judge. Four days before picking Sotomayor he told a C-SPAN interviewer, “I thought empathy was an important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you. But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.”
You can count on Democrats, who hold a majority on the Judiciary Committee, to say “amen” to that, which would all but guarantee Sotomayor’s elevation to the highest court in the land.
What do you think? Should judges use their feelings in court?