Sotomayor and ‘the short end of the Empathy Standard’
July 13, 2009
‘It appears the President has nominated just the kind of judge he said he would—someone who appears to have ‘empathy’ for certain groups who appear before her, but not for others’
WASHINGTON, D.C. - U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Monday regarding the Senate Judiciary Committee hearings on the nomination of Judge Sonia Sotomayor:
“Today the Senate Judiciary Committee will begin its hearings on the nomination of Judge Sonia Sotomayor to be an Associate Justice on the U.S. Supreme Court. The consideration of a Supreme Court nominee is always an historic event. Since our nation’s founding, only 110 people have served on the High Court, and ten of those were nominated by George Washington. There are few duties more consequential for a member of the U.S. Senate than to vote on a Supreme Court nominee.
“This particular nominee comes before the Judiciary Committee with a compelling life story. Like so many other Americans before her, Judge Sotomayor has overcome great adversity. In this, she has reaffirmed once again that ours is a nation in which one’s willingness to work hard and apply one’s talents are the principal requirements for success. And yet, as we begin these hearings, it’s important to remind ourselves that our obligation as Senators under the Constitution’s Advice and Consent Clause requires us to do more than confirm someone to a lifetime position on our nation’s highest court based on their life story. Rather, it requires us to determine whether he or she will be able to fulfill the requirements of the oath taken by all federal judges — that they will, quote, ‘administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent upon [them] under the Constitution and laws of the United States.’
“The emphasis here is on the equal treatment of everyone, without respect to person, status, or belief — that everyone in America can expect that when they enter a courtroom, they won’t be treated any differently than anyone else. That’s what justice is, after all. And that’s what Americans expect of our judicial system — equality under the law.
“Now, President Obama has made it abundantly clear — as a Senator, as a candidate for President, and now as President — that he has a somewhat different requirement for his appointees to the federal bench. He has repeatedly emphasized that his ‘criterion’ for a federal judge is their ability to ‘empathize’ with certain groups. That’s a great standard, if you’re a member of one of those specific groups. It is not so great, though, if you aren’t. So it might be useful to consider some of the groups who have found themselves on the short end of the ‘empathy’ standard.
“First, there are those who rely on the First Amendment’s right to engage in political speech. Then there are those Americans who want to lawfully exercise their right to bear arms under the Second Amendment. Next, those who want protection under the Fifth Amendment’s requirement that private property cannot be taken for a public purpose without just compensation — and that it should not be taken for another person’s preferred private use at all. Also, there are those who want protection from unfair employment practices under the Fourteenth Amendment’s guarantee of the equal protection of the law.
“I mention these specific groups because Judge Sotomayor has had to handle cases in each of these areas. And looking at her record, it appears the President has nominated just the kind of judge he said he would — someone who appears to have ‘empathy’ for certain groups who appear before her, but not for others.
“As I discussed last week, Judge Sotomayor kicked out of court the claims of New Haven, Connecticut, firefighters who had been denied promotions because some minority firefighters had not performed as well as a group of mostly-white firefighters on a race-neutral exam. The Supreme Court reversed her decision in this matter — her third reversal just this term — with all nine justices finding that she misapplied the law. Her treatment of this case, the Ricci case, has been criticized across the political spectrum as ‘perfunctory’ and ‘peculiar,’ and it called into question whether her dismissive handling of the firefighters’ important claims was unduly influenced by her past advocacy in the area of employment preferences and quotas.
“I also spoke last week about provocative comments Judge Sotomayor had made about campaign speech, including her claim that merely donating money to a candidate is akin to bribery. It’s her prerogative to make such statements — as provocative as they may be. But it is not her prerogative as a judge to fail to follow clear Supreme Court precedent in favor of her political beliefs. Yet when she had the chance to vote on whether to correct a clear failure to follow Supreme Court precedent by her Circuit in this very area of the law, she voted against doing so. Ultimately, the Supreme Court, in an opinion authored by Justice Breyer, corrected this error by her Circuit on the grounds that it had failed to follow precedent.
“There are other areas of concern.
“Judge Sotomayor also brushed aside a person’s claim that their private property had been taken in violation of the Fifth Amendment’s ‘Takings Clause.’ As in the Ricci case, her panel kicked the plaintiffs' claims out of court in an unsigned, unpublished, summary order, giving them only a brief, one paragraph explanation as to why. Moreover, in the course of doing so, she dramatically expanded the Supreme Court’s controversial 2005 decision in Kelo v. New London. In Kelo, the Supreme Court broadened the meaning of ‘public purpose’ that allows the government to take someone’s private property. Judge Sotomayor, in the case of Didden v. Village of Port Chester, broadened the government’s power even further.
“Her panel's ruling in Didden now makes it easier for a person’s private property to be taken for the purpose of conferring a private benefit on another private party. This result is at odds with both the plain language of the Fifth Amendment’s Takings Clause, and with the Supreme Court’s statements in Kelo. And, as in Ricci, she did it without providing a thorough analysis of the law. Her panel devoted just one paragraph to analyzing the plaintiffs' important Fifth Amendment claims. It is no wonder then that property law expert Professor Ilya Somin at George Mason University Law School called it ‘one of the worst property rights decisions in recent years.’ Professor Richard Epstein at the University of Chicago College of Law called it not only ‘wrong’ and ‘ill thought out,’ but ‘about as naked an abuse of government power as could be imagined.’
“There’s more. Judge Sotomayor has twice ruled that the Second Amendment is not a fundamental right and thus does not protect Americans from actions by states and localities that prevent them from lawfully exercising their ability to bear arms. As with the Ricci and Didden cases, Judge Sotomayor gave the losing party’s claims in these cases short shrift and did not thoroughly explain her analysis. In one case, she disposed of the party’s Second Amendment claim in a mere one-sentence footnote. In the other case — which was argued after the Supreme Court’s seminal Second Amendment decision in District of Columbia v. Heller — she gave this important precedent cursory treatment, devoting only one paragraph in an unsigned opinion to this important issue, which is unusual for a case of this significance.
“The losing parties in these cases might not have belonged to the groups that the President had in mind when he was articulating his ‘empathy’ standard. But they certainly underscore the hazards of such a standard. They had important constitutional claims, and they deserved to have their claims treated seriously and adjudicated fairly under the law, regardless of what Judge Sotomayor’s personal and political agendas might be. Yet it strikes me that the losing parties in these cases did not in fact get the fair treatment they deserved.
“Indeed, taken together, these cases strongly suggest a pattern of unequal treatment in Judge Sotomayor’s judicial record, particularly in high-profile cases. This pattern is particularly disturbing in light of Judge Sotomayor's numerous comments about her view of the role of a judge, such as questioning a judge's ability to be impartial ‘even in most cases,’ asserting that appellate courts ‘are where policy is made,’ and concluding that her experiences and views affect the facts that she ‘chooses to see’ in deciding cases.
“Republicans take very seriously our obligation to review anyone who is nominated to a lifetime position on our nation’s highest court. That’s why Senators have taken time to review Judge Sotomayor’s record to make sure she has the same basic qualities we look for in any federal judge: superb legal ability, personal integrity, sound temperament, and, most importantly, a commitment to read the law even-handedly. At the beginning of this process, I noted that some of Judge Sotomayor’s past statements and decisions raised concerns. As we begin the confirmation hearings, those concerns have only multiplied.
“Boiled down, my concern is this: that Judge Sotomayor’s record suggests a history of allowing her personal and political beliefs to seep into her judgments on the bench, which has repeatedly resulted in unequal treatment for those who stand before her.
“But that’s what these hearings are all about: giving nominees an opportunity to address the concerns that Senators might have about a nominee’s record. In this case, the list is long.
“So we welcome Judge Sotomayor as she comes before the Judiciary Committee today. And we look forward to a full and thorough hearing on her record and her views.”
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WASHINGTON, D.C. - U.S. Senate Republican Leader Mitch McConnell made the following remarks on the Senate floor Monday regarding the Senate Judiciary Committee hearings on the nomination of Judge Sonia Sotomayor:
“Today the Senate Judiciary Committee will begin its hearings on the nomination of Judge Sonia Sotomayor to be an Associate Justice on the U.S. Supreme Court. The consideration of a Supreme Court nominee is always an historic event. Since our nation’s founding, only 110 people have served on the High Court, and ten of those were nominated by George Washington. There are few duties more consequential for a member of the U.S. Senate than to vote on a Supreme Court nominee.
“This particular nominee comes before the Judiciary Committee with a compelling life story. Like so many other Americans before her, Judge Sotomayor has overcome great adversity. In this, she has reaffirmed once again that ours is a nation in which one’s willingness to work hard and apply one’s talents are the principal requirements for success. And yet, as we begin these hearings, it’s important to remind ourselves that our obligation as Senators under the Constitution’s Advice and Consent Clause requires us to do more than confirm someone to a lifetime position on our nation’s highest court based on their life story. Rather, it requires us to determine whether he or she will be able to fulfill the requirements of the oath taken by all federal judges — that they will, quote, ‘administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent upon [them] under the Constitution and laws of the United States.’
“The emphasis here is on the equal treatment of everyone, without respect to person, status, or belief — that everyone in America can expect that when they enter a courtroom, they won’t be treated any differently than anyone else. That’s what justice is, after all. And that’s what Americans expect of our judicial system — equality under the law.
“Now, President Obama has made it abundantly clear — as a Senator, as a candidate for President, and now as President — that he has a somewhat different requirement for his appointees to the federal bench. He has repeatedly emphasized that his ‘criterion’ for a federal judge is their ability to ‘empathize’ with certain groups. That’s a great standard, if you’re a member of one of those specific groups. It is not so great, though, if you aren’t. So it might be useful to consider some of the groups who have found themselves on the short end of the ‘empathy’ standard.
“First, there are those who rely on the First Amendment’s right to engage in political speech. Then there are those Americans who want to lawfully exercise their right to bear arms under the Second Amendment. Next, those who want protection under the Fifth Amendment’s requirement that private property cannot be taken for a public purpose without just compensation — and that it should not be taken for another person’s preferred private use at all. Also, there are those who want protection from unfair employment practices under the Fourteenth Amendment’s guarantee of the equal protection of the law.
“I mention these specific groups because Judge Sotomayor has had to handle cases in each of these areas. And looking at her record, it appears the President has nominated just the kind of judge he said he would — someone who appears to have ‘empathy’ for certain groups who appear before her, but not for others.
“As I discussed last week, Judge Sotomayor kicked out of court the claims of New Haven, Connecticut, firefighters who had been denied promotions because some minority firefighters had not performed as well as a group of mostly-white firefighters on a race-neutral exam. The Supreme Court reversed her decision in this matter — her third reversal just this term — with all nine justices finding that she misapplied the law. Her treatment of this case, the Ricci case, has been criticized across the political spectrum as ‘perfunctory’ and ‘peculiar,’ and it called into question whether her dismissive handling of the firefighters’ important claims was unduly influenced by her past advocacy in the area of employment preferences and quotas.
“I also spoke last week about provocative comments Judge Sotomayor had made about campaign speech, including her claim that merely donating money to a candidate is akin to bribery. It’s her prerogative to make such statements — as provocative as they may be. But it is not her prerogative as a judge to fail to follow clear Supreme Court precedent in favor of her political beliefs. Yet when she had the chance to vote on whether to correct a clear failure to follow Supreme Court precedent by her Circuit in this very area of the law, she voted against doing so. Ultimately, the Supreme Court, in an opinion authored by Justice Breyer, corrected this error by her Circuit on the grounds that it had failed to follow precedent.
“There are other areas of concern.
“Judge Sotomayor also brushed aside a person’s claim that their private property had been taken in violation of the Fifth Amendment’s ‘Takings Clause.’ As in the Ricci case, her panel kicked the plaintiffs' claims out of court in an unsigned, unpublished, summary order, giving them only a brief, one paragraph explanation as to why. Moreover, in the course of doing so, she dramatically expanded the Supreme Court’s controversial 2005 decision in Kelo v. New London. In Kelo, the Supreme Court broadened the meaning of ‘public purpose’ that allows the government to take someone’s private property. Judge Sotomayor, in the case of Didden v. Village of Port Chester, broadened the government’s power even further.
“Her panel's ruling in Didden now makes it easier for a person’s private property to be taken for the purpose of conferring a private benefit on another private party. This result is at odds with both the plain language of the Fifth Amendment’s Takings Clause, and with the Supreme Court’s statements in Kelo. And, as in Ricci, she did it without providing a thorough analysis of the law. Her panel devoted just one paragraph to analyzing the plaintiffs' important Fifth Amendment claims. It is no wonder then that property law expert Professor Ilya Somin at George Mason University Law School called it ‘one of the worst property rights decisions in recent years.’ Professor Richard Epstein at the University of Chicago College of Law called it not only ‘wrong’ and ‘ill thought out,’ but ‘about as naked an abuse of government power as could be imagined.’
“There’s more. Judge Sotomayor has twice ruled that the Second Amendment is not a fundamental right and thus does not protect Americans from actions by states and localities that prevent them from lawfully exercising their ability to bear arms. As with the Ricci and Didden cases, Judge Sotomayor gave the losing party’s claims in these cases short shrift and did not thoroughly explain her analysis. In one case, she disposed of the party’s Second Amendment claim in a mere one-sentence footnote. In the other case — which was argued after the Supreme Court’s seminal Second Amendment decision in District of Columbia v. Heller — she gave this important precedent cursory treatment, devoting only one paragraph in an unsigned opinion to this important issue, which is unusual for a case of this significance.
“The losing parties in these cases might not have belonged to the groups that the President had in mind when he was articulating his ‘empathy’ standard. But they certainly underscore the hazards of such a standard. They had important constitutional claims, and they deserved to have their claims treated seriously and adjudicated fairly under the law, regardless of what Judge Sotomayor’s personal and political agendas might be. Yet it strikes me that the losing parties in these cases did not in fact get the fair treatment they deserved.
“Indeed, taken together, these cases strongly suggest a pattern of unequal treatment in Judge Sotomayor’s judicial record, particularly in high-profile cases. This pattern is particularly disturbing in light of Judge Sotomayor's numerous comments about her view of the role of a judge, such as questioning a judge's ability to be impartial ‘even in most cases,’ asserting that appellate courts ‘are where policy is made,’ and concluding that her experiences and views affect the facts that she ‘chooses to see’ in deciding cases.
“Republicans take very seriously our obligation to review anyone who is nominated to a lifetime position on our nation’s highest court. That’s why Senators have taken time to review Judge Sotomayor’s record to make sure she has the same basic qualities we look for in any federal judge: superb legal ability, personal integrity, sound temperament, and, most importantly, a commitment to read the law even-handedly. At the beginning of this process, I noted that some of Judge Sotomayor’s past statements and decisions raised concerns. As we begin the confirmation hearings, those concerns have only multiplied.
“Boiled down, my concern is this: that Judge Sotomayor’s record suggests a history of allowing her personal and political beliefs to seep into her judgments on the bench, which has repeatedly resulted in unequal treatment for those who stand before her.
“But that’s what these hearings are all about: giving nominees an opportunity to address the concerns that Senators might have about a nominee’s record. In this case, the list is long.
“So we welcome Judge Sotomayor as she comes before the Judiciary Committee today. And we look forward to a full and thorough hearing on her record and her views.”
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