Obama's Empathy Standard Drawing Heat
By Jerry Markon
President Obama has come under fire from conservatives for his so-called empathy standard -- his belief that judges should have a heart in addition to respecting the Constitution.
“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom,’’ then-candidate Obama said in a widely quoted speech to Planned Parenthood in 2007. "The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."
The president repeated his views in announcing Supreme Court Justice David H. Souter’s retirement, saying he will seek a replacement “who understands that justice isn't about some abstract legal theory or footnote in a casebook.’’
But Republicans point to a little-noticed speech on the Senate floor in 2005, in which then-Sen. Obama sounded a different theme. “The test of a qualified judicial nominee is also not whether that person has their own political views,’’ he said in opposing the appeals court nomination of California Supreme Court Justice Justice Janice Rogers Brown.
“…The test is whether he or she can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended.’’
Republicans have seized on the difference and are planning to bring it up at the Senate confirmation hearing for Obama’s nominee. They said Obama’s 2005 statement is consistent with their philosophy of “judicial restraint’’ – making decisions solely on the law and facts.
“They are two fundamentally irreconcilable positions,’’ said a Senate Republican source, who spoke on condition of anonymity because he was not authorized to speak publicly. He said the nominee may be asked: “Which Barack Obama nominated you? Which of these two judicial philosophies do you subscribe to?’’
Sen. Charles E. Schumer (D-N.Y.) said Obama's 2005 position on judges is "entirely consistent with where the president is today -- he doesn't think ideology should guide a judge, he thinks the law should...he has simply made clear that while in 95 percent of cases a literal reading of the law leads to a clear decision, on other rare occasions, a Justice must interpret ambiguities in the law, or apply the law to a modern problem, bringing to bear common sense and an understanding of how the law affects the everyday realities of people's lives.''
A White House spokesman declined to comment. Obama has stressed that in addition to the capacity for empathy, his nominee also must have other qualities, such as intellect, integrity and respect for the Constitution and the law.
May 21, 2009; 4:04 PM ET
Categories: Supreme Court
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