Litigation

?Empathy? Gone from Obama?s Supreme Court Search?

By Peter Hardin

President Barack Obama is choosing not to talk about “empathy” as he selects his second nominee for the Supreme Court.  Instead, he now seeks someone with “a keen understanding of how the law affects the daily lives of the American people.”

The change in language is so notable that two leading national newspapers examined it, and the implications, in articles Monday. Obama’s change in wording is much “more than semantic,” a New York Times article remarked:

“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.”

When then-Judge Sonia Sotomayor faced a confirmation hearing, she disavowed use of the word “empathy,” commenting that “judges can?t rely on what?s in their heart.” And appeals court nominee Albert Diaz told senators that empathy does not have a role “as part of the ultimate decision-making process.”

Although Obama named empathy as an important criterion in selecting his first Supreme Court nominee, he has avoided using it this round. His newly phrased criterion hasn’t satisfied all critics; “?I?m not sure it?s much different,? said Sen. Jeff Sessions, the senior Republican on the Senate Judiciary Committee.

A Washington Post article focused more on Obama’s statement that like retiring Justice John Paul Stevens, a new justice should be one  who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Liberal advocacy groups support that idea. Yet it is unclear whether potential candidates on Obama’s shortest list meet that rhetoric, the Post suggested. Observed Christopher Eisgruber, provost of Princeton University, “”I can’t square this circle right now, based on the criteria he has listed.”

An alternative view came from John Payton,  president of the NAACP Legal Defense and Education Fund. The president’s remarks can be interpreted, Payton said, that he seeks an individual  who would show a measure of deference to “the legislative branch’s prerogative in making laws that they think are for the benefit of the country.”

Other new articles and commentary about the nominations process include Tony Mauro’s report in National Law Journal entitled “Pushing for a nonjudge on the high court,” and an Associated Press profile of White House Counsel Bob Bauer, headlined “Obama’s Supreme Court point man lowkey but tough.” You can check out  Gavel Grab for further and commentary.

Full post as published by The Gavel on April 26, 2010 (boomark / email).