Then-Senator Barack Obama first invoked the empathy standard, during a November 2007 Democratic Presidential debate. The question was originally about whether or not the Democratic candidates would appoint nominees to the federal bench that support abortion rights.
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.