Question: Could it be true that President Obama is still using empathy as the prerequisite for choosing his second Supreme Court nominee?
This recent article reveals the disturbing answer to this question-You Decide:
In Court Nominees, Is Obama Looking for Empathy by Another Name?–Posted on The New York Times-By PETER BAKER-On April 25, 2010:
These are pertinent excerpts from this article:
“WASHINGTON — Empathy is out. Understanding ordinary lives is in. Is there a difference? President Obama is about to find out.
A year after Mr. Obama made “empathy” one of his main criteria in picking his first Supreme Court justice, he is avoiding the word, which became radioactive, as he picks his second nominee. Instead, he says he wants someone with “a keen understanding of how the law affects the daily lives of the American people.”
The issue is more than semantic. At the heart of the debate over Mr. Obama’s vision for the Supreme Court are sharply contrasting views about the role of a judge. The president emphasizes that while adhering to the rule of law, judges should also be able to see life through the eyes of those who come before the bench. His critics call that a prescription for twisting decisions to reach a desired outcome rather than the one mandated by the letter of the law.
The dispute became so contentious last year that even Mr. Obama’s nominee for the court, Sonia Sotomayor, disavowed the notion of empathy during hearings before her confirmation, saying that “judges can’t rely on what’s in their heart.” Ever since, Mr. Obama has found other ways of describing what he meant without abandoning the concept.
“It’s a word that requires explanation, even though people like myself, we understand what he was saying,” said Lee Epstein, a constitutional scholar at the Northwestern University School of Law. “You hear ‘empathy’ and you don’t think impartiality, judicial temperament. The other words, ‘life experience,’ they don’t have the same impact.”
But critics said the new phrase was no better. “I’m not sure it’s much different,” said Senator Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee. “It seems to be calling again for judges to be less committed to fidelity to the law and calling for them to reach decisions that somehow endeavor to decide who ought to win.”
Mr. Obama has been searching for empathy, or its rhetorical equivalent, in Supreme Court candidates for at least five years. When he announced his decision as a senator to vote against the confirmation of John G. Roberts Jr. as chief justice in 2005, he declared the nominee to be short of that quality.
Equating tough court decisions to a marathon, Mr. Obama said that the first 25 miles may be determined by precedent and technical understanding of the law, but “that last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
He used the word again as a presidential candidate explaining his view of Supreme Court nominations and then again last year when Justice David H. Souter announced his retirement, leading to the selection of Justice Sotomayor. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes,” Mr. Obama said.
As Mr. Obama’s aides and liberal supporters have pointed out, Republican presidents and Supreme Court nominees have cited the importance of empathy as well. But it became a highly charged term that, along with Justice Sotomayor’s comment that a “wise Latina” would make better decisions, defined her confirmation process.
Mr. Sessions has since made a point of grilling the president’s nominees for lower courts about whether they agree with Mr. Obama or with Justice Sotomayor. At a hearing in December, for example, Albert Diaz, who was nominated for a seat on the United States Court of Appeals for the Fourth Circuit, danced delicately around the question.
“I do believe that empathy has a role to play in our judicial process, but not as part of the ultimate decision-making process,” Judge Diaz said. Empathy, he added, meant “that folks believe that they’ve gotten a fair shake, that the judge has listened carefully to what it is that they have to say.” The Judiciary Committee unanimously sent Mr. Diaz’s nomination to the Senate floor, where it is pending.
When Justice John Paul Stevens announced his retirement this month, Mr. Obama left the e-word out of the job description. Instead, he said he wanted someone with “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.”
A justice, Mr. Obama added, must be someone who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Asked last week if that constituted empathy in the president’s mind, Robert Gibbs, the White House press secretary, demurred. “I don’t know whether all of that meets the test of the definition of a certain word,” he said.
Ed Gillespie, a former adviser to President George W. Bush who shepherded Mr. Roberts’s nomination through the Senate, said: “It’s not surprising Obama’s backed away from citing empathy as a quality as a justice. Empathy’s a great trait in a drinking buddy, but not so much a Supreme Court justice.”
“The most empathetic party in a case,” Mr. Gillespie added, “may not be the one with the law on its side, in which case a justice should actually set aside his or her empathy. Unfortunately, it’s doubtful President Obama’s backed away from empathy as a qualification as much as he’s backed away from using the word itself.”
Liberal supporters hope that is true. “Looking at the president’s language, I think he’s looking for someone who understands that the Constitution promises fair treatment for all people,” said Michael B. Keegan, president of People for the American Way, an advocacy group. “Judges who push a political agenda that consistently privileges corporations and powerful interests over the rights of individuals aren’t keeping faith with the Constitution.”
Pamela S. Karlan, a Stanford Law School professor who many on the left wish Mr. Obama would nominate for the Supreme Court, said the real issue is that many people do not understand the difference between empathy and sympathy. Empathy means being able to imagine oneself in the condition or predicament of another, while sympathy means sharing the feelings of another to the point of compassion or pity.
“The problem with the word empathy isn’t the concept, it’s the confusion,” Ms. Karlan said. “People don’t want judges who say, ‘Oh, I feel so bad for you I’m going to disregard the law.’ Nobody wants that in a judge, on the left or the right. But I think everybody wants judges to understand people and how the law operates in their lives.”
Note: The above article and/or blog post relates to and/or supports my following blog posts-You Decide:
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