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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.

By Paul Volpe  |  May 21, 2009; 4:04 PM ET
Categories:  Supreme Court  
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Comments

1. Honor the Constitution (as a strict constructionist would).

2. Empathy (i.e., Have a heart).

Number 2 ONLY once number 1 is met as a requirement.

Posted by: RealTexan1 | May 21, 2009 6:21 PM | Report abuse

Empathy is the ability to set aside own's preconceptions and biases in order to see the world through the eyes of another. It isn't sympathy and has very little to do with having a heart. In order to help a patient, a therapists puts aside their own preconceived cognitions, value, etc. in order to see the world through the eyes of the patient. Then and only then can they empower the patient to help himself. A judge by nature of the job is not suppose to impose their own agenda in the interpretation of the law. It isn't suppose to be about the man/woman in the robe, it is suppose to be about the law. This is an inane argument.

Posted by: xclntcat | May 21, 2009 6:50 PM | Report abuse

"Obama's Empathy Standard Drawing Heat," says the Post.

Critics named in the story: 0
Critics quoted: Just the one, "a Senate Republican source" who is "not authorized to speak publicly."

"But Republicans point to a little-noticed speech on the Senate floor in 2005, in which then-Sen. Obama sounded a different theme."

Republicans cited to back this up: 0

"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."

Republicans cited to back this up: 0

It must be nice to be the GOP, all it takes is one anonymous peon to say two characteristics are irreconcilable (even if they're not) and suddenly the President's standard is "drawing heat."

Posted by: petalhorse | May 21, 2009 11:46 PM | Report abuse

"“They are two fundamentally irreconcilable positions,’’ said a Senate Republican source"


Abstract legal theories come up with concepts like "Seperate, but equal." It takes empathy to see that seperate isn't equal at all.

Posted by: bsimon1 | May 22, 2009 9:53 AM | Report abuse

Obama changes even his "bedrock" principles to suit his perception of the audience as well as what is currently expedient. The most charitable description of that I can think of is that he is a "politician's politician".

That said, obviously judges cannot permit personal feelings to sway their rulings. Does it happen? Sure. But it should not and installing it as general practice in the Supreme Court is nuts. There's a reason that the statues of Justice on the courthouse steps show her blindfolded and holding an even set of scales: Americans need to know that their judiciary will treat them fairly according to the law regardless of their station in life. That is a noble ideal that liberals (supposed idealists) of all people should understand and support to the death. Without fairness, we literally do not have justice.

Obama's statements -- truly terrifying from a guy who attended Harvard Law School and worked as a law professor -- betray a fundamental misunderstanding of the basic tenets and outline of the American judiciary. The day he replaces the Supreme Court Justices with the Supreme Court Empathizers is the day we become another 3rd rate banana republic.

Posted by: zippyspeed | May 22, 2009 10:19 AM | Report abuse

Will the republotard critic become less anonymous during the hearing?

Or will they snipe and sling mud anonymously forever?

Will the WaPo take these anonymous snipers seriously forever?

The world wonders.

Posted by: Heerman532 | May 22, 2009 10:49 AM | Report abuse

zippyspeed writes
"The day he replaces the Supreme Court Justices with the Supreme Court Empathizers is the day we become another 3rd rate banana republic."


Perhaps zippyspeed & the rest of the critics fail to understand the distinction between empathy & sympathy.


.

Posted by: bsimon1 | May 22, 2009 11:14 AM | Report abuse

"Have a heart" isn't going to be enough here. There are thousands of very nice, very compassionate nuns out there who are working to help teenage mothers in an unexpected pregnancy, but don't agree with abortion. What about Terry Schiavo? Who do you empathize with there? The parents who are frantically afraid of losing their daughter, or the husband who has finally been able to "let go." Perhaps torture cases? Do you empathize with the victims of 9/11, or the beheadings, or the suicide bombers? Or do you empathize with the men living in Gitmo? There's a reason the statue outside SCOTUS is wearing a blindfold...

Posted by: mwcob | May 22, 2009 12:59 PM | Report abuse

"in 95 percent of cases a literal reading of the law leads to a clear decision"

I doubt this is true of 95% of the cases heard by the Supreme Court. They choose to decide only a tiny percentage of the cases that litigants ask them to hear. Presumably they don't pick only the easy ones.

Posted by: mclmyers | May 22, 2009 1:01 PM | Report abuse

I see no conflict between the "two" judicial philosophies of Barack Obama. The task of the supreme court justices is to interprete the law. Empathy as a basis for fairness and the just interpretation of laws is deep rooted in the political morality of America. It is also different from interpreting the law based on one's ideological disposition unless the theoretical underpinnings of that ideology include empathy to others.

Posted by: AbiyeTeklemariam | May 22, 2009 1:32 PM | Report abuse

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