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'Empathy' Takes a Knock in Confirmation Hearings

Publication Date: 
July 19, 2009
The Wall Street Journal
Jess Bravin

Dean Larry Kramer talked to Jess Bravin, who covers the Supreme Court for the The Wall Street Journal, about the confirmation hearings for Judge Sonia Sotomayor and the role of "empathy" in judicial decision making. Bravin filed this report:

WASHINGTON -- Judge Sonia Sotomayor seems assured of confirmation to the Supreme Court following last week's hearing. But "empathy," the quality President Barack Obama has proposed as a criterion for his judges, got a pummeling from both Republicans and Democrats -- and from the nominee herself.

Asked during the hearing if she agreed with Mr. Obama that the "critical ingredient" in deciding the hardest cases is empathy, or "what's in the judge's heart," Judge Sotomayor didn't hesitate.

"No sir," she told Sen. Jon Kyl (R., Ariz.). "I don't wouldn't approach the issue of judging the way the president does," she said. "It's not the heart that compels conclusions in cases, it's the law."

Whether spontaneous or scripted by White House handlers, that response was cited by Republicans as perhaps the only victory they could claim from the four-day Senate Judiciary Committee hearing, which Judge Sotomayor, presenting herself as a nonideological judicial technocrat, completed without an apparent misstep.


Liberals have long chafed at conservatives' success in framing judicial appointments as a political issue, with their evocation of criteria such as "strict constructionism" and "originalism." Conservatives coined those terms to contrast their views with Supreme Court decisions from the 1950s and '60s that they contended strayed from the Constitution's original meaning.

" 'Empathy' is Obama's effort to find a new label free of the baggage that might be carried by the old labels, but it just didn't work," said Larry Kramer, dean of Stanford Law School.