Category Archives: Empathy

Defining the Empathy Standard

Ruth Marcus at the WaPo attempts to provide some definition to the empathy standard.

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.

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Who’s afraid of Empathy and Sotomayor?

Apparently, Karl Rove is.

Souter Speculation Link Round-Up

Rumor and speculation are the life blood of covering nominations and appointments particularly during the early days of any presidential administration. That said, here are some helpful links and other info on who is on the short and expanded list of replacements.

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.”

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.

Obama the Candidate on Supreme Court Nominees

If you drop the needle at the 8:28 mark, you will see that in this May 8, 2008 interview with CNN’s Wolf Blitzer, candidate Obama sounded a lot like President Obama.

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.