Possessing the “empathy to recognize” should not determine the outcome of a case, but it should inform the judge’s approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia’s sodomy law, told fellow justices — and even a gay law clerk during that very term — that he had “never met a homosexual.” Would the outcome of Bowers — an outcome Powell regretted within a few months — have been different if the justice had known men and women in same-sex relationships?

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

Mark Hemingway at Bench Memos ran with it and called “her dumb and obnoxious.” And then the gossippy drivel just took on a life of its own to the point to with some wanting to reduce Sotomayor’s potential nomination to being another instance of an affirmative action baby  that never quite makes the cut “she’s also female and Hispanic, and those are the things that count nowadays,” quipped John Derbyshire.

But then the push back came. Matthew Yglesias took Rosen to task at TP after correctly noting, “You don’t see a lot of dumb kids growing up in the South Bronx and winding up at Princeton.”

Glen Greenwald also chimed in on the smear saying “What this sorry episode reveals, yet again, is just how poisonous and destructive is the reckless use of anonymous gossip-mongers masquerading as “journalism.”"

Adam Serwer at Tapped in a very eloquent post had a different take.

It’s far more insidious — a rumor, a feeling, a notion that the person standing in front of you who doesn’t look like you is just “dumb and obnoxious.” So you throw their resume in the “no” pile because you don’t like their name, you seat them in the back of the class, you promote another person. You just can’t really explain why. It’s… just a feeling.too

Gerard Magliocca at Concurring Opinions, says from first hand experience that found the ill-tempered charge by Rosen is utterly baseless. “With respect to appellate argument, I never saw anything but the best behavior from her, even in cases (and there were a few) where I did not agree with the position that she took or where the lawyers arguing before the panel were clueless,” said the former Second Circuit clerk. “Accordingly, the idea that she does not have an appropriate judicial temperament is absurd. I would instead describe her as politically savvy.”

Alisa Valdes-Rodriguez is convinced she can see right through all the attacks, which in her view stem from too “many Republicans continue to view American society through the shattered lens crafted during the colonization of the Americas. To them, the thought of a Latina with power is nothing short of terrifying.”

Meanwhile, Christopher Eisgruber tells us “Diversifying the court in terms of race and gender would be consistent with Obama’s principles and his Cabinet appointments. It would also be smart politics.”

Ummm….yeah.

But rest assured the attacks will come coming. Marc Ambinder observes all of the back and forth and finds “If Sotomayor loses control of her public image before her nomination, then liberal groups will have trouble in the months ahead.” He also added “Obama’s nominee will probably pass through the Senate fairly easily, but a discredited nominee — even though she might make it to the Court — will not.”

Hmph. We’ll see.

Case law does not just come out of the thin air. Its grounded in previous court opinions may have interpreted a given statue and usually its a fairly rigorous process taking place over many years.

So now conservatives think they have a smoking gun video clip with Judge Sonia Sotomayor telling law students in a flip manner that policy gets made at the appellate court level.  And that’s certainly true for a lot of things, particularly domestic policy, but not as true when it comes to national security matters.

At any rate, here is the innocuous clip of Judge Sotomayor discussing case law.

The WSJ wants President Obama to appoint, “Jose Cabranes, a Puerto Rican immigrant named to the Second Circuit Court of Appeals by President Clinton in 1994.”

Keith Perine at CQ’s Legal Beat asks when is a filibuster not a filibuster. Seth Stern also says that we should expect a vote to confirm Obama’s nominee whoever she is some time before the August recess.

Micheal Fletcher and Paul Kane at the WaPo report that administration officials expect the next nominee to be confirmed by October. Dan Balz also at the WaPo informs us that even if the nomination battle become a hyper partisan navigating the politics of it all may still be tough.

I got an oldie but goodie here. In July of 2007, Tom Goldstein wrote a really good post for SCOTUS blog on who Democratic Supreme Court nominees might be.

Stuart Taylor at the National Journal shares some “random thoughts” on what to expect when you are expecting a nominee.

Georgetown Law Professor Jefferey Rosen in the NYT urged the president not to follow the Souter model in picking a nominee, since he had “a hermetically sealed approach to the job” and “had had trouble communicating his ideas” to other Justices.

Mary L. Dudziak at Balkination says Obama should appoint someone like Justice Thurgood Marshall to the court.

Meteor Blades at DailyKos has a post featuring pics to go with the names of potential nominees being floated in the media.

Otis is Hungry at Daily Kos also has bios and commentary to go with the names.

Michele Malkin implores her fellow conservatives to gird their lions.

SCOTUS blog collected the statements from sitting Justices on Souter’s retirement.

Here is a transcript of those remarks.

BLITZER: You used to teach constitutional law.

OBAMA: Yes.

BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?

OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it’s just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think…

BLITZER: Are there members, justices right now upon who you would model, you would look at? Who do you like?

OBAMA: Well, you know, I think actually Justice Breyer, Justice Ginsburg are very sensible judges.

I think that Justice Souter, who was a Republican appointee, is a sensible judge. What you’re looking for is somebody who is going to apply the law where it’s clear. Now, there’s going to be those 5 percent of cases or 1 percent of cases where the law isn’t clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.

And, in those circumstances, what I do want is a judge who’s sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power, and, as a consequence, can’t protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.

That’s been its historic role. That was its role in Brown vs. Board of Education.

I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there’s pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don’t have a president who is taking over more and more power.

I think those are all criteria by which I would judge whether or not this is a good appointee.

But who is she?

According to news reports, the 55 year old native of the Bronx, New York was raised by a single mom in the city’s housing projects.  In 1976, she graduated summa cum laude from Princeton University and went on to become an editor at the Yale Law journal. The appellate judge of Puerto Rican descent apparently decided to pursue a legal career after watching episodes of Perry Mason as a girl. She served as an assistant district attorney for New York Country, which is basically Manhattan, from 1979 until 1984.

President Bush the elder appointed Sotomayor to the federal bench as a trial court judge at the urging of New York Senator Daniel Patrick Moynihan.  President Bill Clinton elevated her to the Second Circuit Court of Appeals since 1998, and according to the New York Times, is best known “for issuing an injunction against major league baseball owners in April 1995, effectively ending a baseball strike of nearly eight months, the longest work stoppage in professional sports history, which had led to the cancellation of the World Series for the first time in 90 years.”

But she is lesser known for a more historic case.  In 2004, for instance, she wrote a majority opinion revoking the citizenship of an 84 year old New York resident who misrepresented his involvement in the Germany army during WWII. Jack Reimer was an ethnic German born in Ukraine who became a U.S. naturalized citizen in 1959 who contended that he was forced to serve in the Germany army against his will. But a federal trail court judge found that Reimer was much more involving in persecuting Jews than he let on and revoked his U.S. citizenhip. When Reimer appealed the trial court’s decision, Sotomayor affirmed the lower court’s ruling. The case is called United States v. Reimer.

In her majority opinion, Sotomayer said, “We find it no less an act of assistance in persecution that [Reimer], whose presence just as much as that of the other armed guards forced the victim to remain in the pit waiting to be murdered, ultimately fired over the victim’s head.”

Here is how Hill.com summed up another case that involved the Klu Klux Klan.

In 2004, Sotomayor joined a ruling that upheld a law targeted at the Ku Klux Klan that would ban mask-wearing in public.

“The masks that the American Knights seek to wear in public demonstrations does not convey a message independently of the robe and hood,” the court decided. “That is, since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not. The expressive force of the mask is, therefore, redundant.”

Since she’s been on the bench she has demonstrated an independent streak in in casesm so saith the NYT, where she ruled against the White House, and cases involving the religious rights of prisoners and the Hell’s Angels while earning high praise from liberals.

Here is a transcript of those remarks.

MR. BLITZER: Thank you.

Senator Obama, you used to be a professor of law.

SEN. OBAMA: I would not appoint somebody who doesn’t believe in the right to privacy. But you’re right, Wolf, I taught constitutional law for 10 years, and I — when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout. (Applause.)

And part of what I want to find in a Supreme Court justice — and Joe’s exactly right, sometimes we’re only looking at academics or people who’ve been in the court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court. (Applause.)

Though he did not use the word, he did invoke some of the ideas associated with the empathy standard again in an October 2008 Presidential debate against Senator John McCain.

OBAMA: So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.

I’ll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.

For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently.

We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

In a press statement, Chairman of the Senate Judiciary Committee Patrick Leahy urged his fellow lawmakers to operate in a bipartisan manner. “In exercising their important roles in the confirmation of the next Supreme Court Justice, I hope that all Senators will take this opportunity to unify around the shared constitutional values that will define Justice Souter’s legacy on the Court.”

For his part, Senate Minority Mitch McConnell released an even tempered statement on the upcoming vacancy. A Supreme Court nominee needs to be able to fulfill the judicial oath of applying the law without prejudice, and not decide cases based on their feelings or personal politics,” he said in a press release. He also vowed “to ensure that their record is thoroughly reviewed and that there is a full and fair debate.”

The Congressional Hispanic Caucus called upon President Obama to appoint the first Hispanic U.S. Supreme Court Justice noting, “Though we make up 15 percent of the U.S. population,  less than 4 percent of the federal judges are of Hispanic descent and not one has served on our nation’s highest court.”

In a segment on the PBS Newshour show, New York Times columnist David Brooks agrees the next nominee will probably be a woman, but cautions against picking a liberal lion that will galvanize the base. He cites the successful nomination of then-Judge John G. Roberts, who though certainly a conservative, has a more conciliatory style and thus was a much more confirmable nominee.

He also suggests that we should not simply think of the next appointment as simply one liberal replacing another, because the more important thing is that he has a chance to pick someone who will likely remain on the court for a generation.

First, the average Supreme Court justice now serves over 26 years, so Souter was a liberal vote for the next few years, but Obama has the chance to pick someone who will be a liberal vote for 26 years. So that’s just the long term; that’s what makes it a big deal.

And then the second question is, what kind of liberal vote is the next going to be? And a lot of people are saying it should be a liberal Scalia, someone who’s just hard-hitting, straightforward arguments.

But you could have more a liberal John Roberts, somebody who is more conciliatory, but maybe a better coalition-builder. So you’ve still got choices there. And… it’s probably going to be a woman.

Other pundits, bloggers and various advocacy groups also weighed in on what Souter’s departure means.

Ben Smith says he suspects “Obama will be tempted to pick one of the prominent legal minds whom he knows personally, and whose philosophy he likes, given his own engagement with legal theory.”

Matthew Franck at the National Review’s legal blog bench memos urges Senate Republicans not to filibuster Obama’s nominee because  “not only hypocritical after so many GOP senators professed their opposition to it while George W.  Bush was president.  It’s also just plain wrong.  Supreme Court nominations deserve an up-or-down vote.”

The liberal advocacy group People for the American Way released the following statement:

To fill Justice Souter’s seat on the Court, President Obama should nominate someone who can continue his work to defend our personal freedoms and ensure that every person has equal access to justice. Our country needs another jurist who appreciates the impact that the law and the Constitution have on every American, not just a few.

Conservative pundit Michelle Malkin posted GOP talking points on her blog and advises her readers to gird their loins for the upcoming battle over the nomination. The talking points are essentially right wing attacks against those reportedly on the Obama shortlist, including former Harvard Law School Dean and newly confirmed U.S. Solicitor General Elana Kagan, Second Circuit Court of Appeals Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Pamela Wood.

The Heritage Foundation derides Obama’s empathy standard and instead wants the president to consider the umpire standard invoked by then-Judge John Roberts. Heritage praised Roberts’ analogy because an umpire “doesn’t bend the rules for the game, but just calls them as he sees them; someone who offers no favoritism depending on who is at bat.” The empathy standard, says Heritage, would invite a judge to go beyond what the law requires.

Media Matters, a liberal watchdog group, posted audio clips of Rush Limbaugh speculating on what to anticipate over the next few weeks.

Limbaugh: “Sotomayor is Puerto Rican, this is going to make the Mexicans and the Cubans angry”
http://mediamatters.org/countyfair/200905010019?show=1

Limbaugh says he doesn’t know what court Sotomayor is on, but parrots GOP talking points to attack record
http://mediamatters.org/countyfair/200905010020?show=1

Rush: “[W]acko fringe nutcases from the blogs” will pressure “Obama to pick somebody like Ward Churchill”
http://mediamatters.org/countyfair/200905010017?show=1

Limbaugh on what Obama is looking for in a Supreme Court justice: “We need a teenage single mother, who’s gay, is a lesbian, who’s dirt poor, African-American, and disabled”
http://mediamatters.org/countyfair/200905010021?show=1

Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.

That same day the Washington Post ran a front page story noting the same three names on the President’s short list that Totenberg reported on, but other names too.

White House advisers have been drafting lists of potential replacements virtually since Obama took office, and the list is said to also include Stanford University law professor Kathleen M. Sullivan, Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit, Michigan Gov. Jennifer M. Granholm and Georgia Supreme Court Chief Justice Leah Ward Sears. Souter, who has been on the court since October 1990, was nominated by President George H.W. Bush on July 25, 1990, to a seat vacated by William J. Brennan Jr. He was confirmed by the Senate on Oct. 2, 1990.

Lyle Denniston at SCOTUS blog provides an excellent overview of Souter’s tenure on the court and notes Souter does not have to stay on the Court any longer than when he he wants to leave.

Souter is not obliged by law to remain on the Court beyond any point that he chooses to depart.  It has been commonplace, however, for most retiring Justices to serve until a successor is ready to take office.  One member of the modern Court — Chief Justice Earl Warren — served a year longer than he had wanted, because his nominated successor, Justice Abe Fortas, ultimately withdrew amid controversy.  Souter may not have wanted to risk a prolongation of service in Washington — a community and an environment that he has long found unappealing.

Sometime in the afternoon on May 1st, Souter submits a terse letter of resignation to the president.

Dear Mr. President:

When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l), having attained the age and met the service requirements of subsection(c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.

Yours respectfully,

David Souter

That same afternoon President Barack Obama interrupts a White House press briefing to deliver a statement on Souter’s retirement and articulates the qualities he is looking for in a new justice. In his statement, President Obama thanked Souter for his years of public service and praised Souter his sense of compassion, integrity and independence while also noting he was not an ideologue.

Perhaps taking the time to highlight these qualities the one time University of Chicago Constitutional law professor is signaling what he is looking for in a Supreme Court nominee or at least how he would like that person to be portrayed in the press.

Looking ahead towards Souter’s replacement, the president said he wants a nominee that is not only “sharp and independent mind and a record of excellence and integrity,” but also one who possesses “empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.”

As others have already noted, President Obama’s statement contained echoes of what he said as a candidate when he invoked the empathy standard whenever asked what kind of judges he wants to nominate to the federal bench.

The White House posted a transcript of the president’s remarks:

THE PRESIDENT: I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task — reaching a just result in the case that was before him.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion — the hallmark of not just being a good judge, but of being a good person.

I am incredibly grateful for his dedicated service. I told him as much when we spoke. I spoke on behalf of the American people thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court’s new term begins.