Media ignore Sessions' double-standard on judges' reliance on personal experience

››› ››› JOCELYN FONG

In reports on the confirmation hearings of Sonia Sotomayor, numerous media outlets quoted Sen. Jeff Sessions' assertion that he would not vote for a justice who would rely on personal experience to decide cases. But Sessions voted to confirm Samuel Alito, who highlighted the importance of his personal experience during his hearing.

In reports on the confirmation hearings of Supreme Court nominee Judge Sonia Sotomayor, numerous media outlets, including the Politico, the Associated Press, the Los Angeles Times, CNN, and PBS, quoted or reported on Sen. Jeff Sessions' (R-AL) assertion that "I will not vote for -- and no senator should vote for -- an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender prejudices, or sympathies to sway their decision in favor of, or against, parties before the court." These outlets did not note that Sessions voted to confirm Justice Samuel Alito, who stated during his confirmation hearing in 2006, "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."

While several of these outlets noted that Sotomayor expressed a commitment to impartiality during the hearing, they did not note that she has previously said, "I agree with, and attempt to work toward," the goal that "judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law."

From Sotomayor's 2001 speech at the University of California-Berkeley School of Law:

SOTOMAYOR: While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.

From the July 13 Politico article:

Sotomayor spoke soon after Senate Republicans opened the confirmation hearings Monday morning with surprisingly tough attacks, including a fusillade in which the panel's ranking member, Sen. Jeff Sessions (R-Ala.), said he found troubling Sotomayor's views on the role of personal experience in rendering decisions from the bench.

"I will not vote for -- no senator should vote for -- an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court," said Sessions.

While some had expected Republican senators to step gingerly around issues close to the nominee's ethnicity, Sessions quickly took aim at Sotomayor over her ruling last year against a group of white firefighters who sued the city of New Haven, Conn., after it canceled a promotional exam because African-American firefighters did not do well enough to be promoted.

[...]

Republicans are not predicting Sotomayor's defeat, but are questioning whether her views on the role of a judge's personal experience, ethnic background and gender are appropriate to reward with a lifetime appointment to the nation's highest court.

From the July 13 AP article:

Sen. Jeff Sessions of Alabama, the senior Republican, promised a "respectful tone" and "maybe some disagreements" when lawmakers begin questioning Sotomayor on Tuesday.

"I will not vote for, and no senator should vote for an individual nominated by any president who believes it is acceptable for a judge to allow their own personal background, gender, prejudices or sympathies to sway their decision," he said.

"Call it empathy, call it prejudice or call it sympathy, but whatever it is, it's not law," Sessions said. "In truth, it's more akin to politics, and politics has no place in the courtroom."

But Republicans also lined up to note the historic nature of the day.

"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court," said Kyl.

From the July 13 LA Times article:

At the moment, Sotomayor's confirmation appears likely. With the swearing-in last week of Sen. Al Franken (D-Minn.), Democrats have the 60 votes necessary to thwart any Republican filibuster attempt. Leahy went as far as to pledge Sotomayor "will be confirmed," and he suggested that Republicans would oppose her at their political peril.

But some seemed ready to do just that.

Sen. Jeff Sessions of Alabama, the top Republican on the committee, aggressively laid out his concerns about Sotomayor in a lengthy opening statement.

Sessions called Sotomayor's repeated statements that life experiences affect her decision-making "shocking and offensive to me." He suggested that Sotomayor would utilize judicial "empathy" to favor certain litigants over others. "Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is now law," Sessions said. "In truth, it is more akin to politics."

He compared Sotomayor to Justice Ruth Bader Ginsburg, the only woman on the high court, calling her "one of the most activist judges in history."

Not all Republicans were in lockstep with Sessions. Sen. Lindsey Graham (R-S.C.) suggested that President Obama should be allowed some deference to choose whom he wishes for the court, noting that Obama won the election. "That ought to matter," Graham said.

From the 3 p.m. ET hour of the July 13 edition of CNN Newsroom:

RICK SANCHEZ (host): Key words again: "apply the law to the facts at hand." That is what she says.

Her opponents, Republicans, are suggesting that her judgment may be clouded by a bias toward minorities at times. And there's an irony that we probably should point out here as well; the Republican leading the charge is Alabama's Jeff Sessions. Years ago, Sessions was chosen for a federal judgeship and had his nomination quashed by this committee amid criticism that he was "grossly insensitive" -- stop quote -- to minorities.

Now, and, ironically, it is Sessions insisting that Sotomayor demonstrate that she's impartial.

SESSIONS [video clip]: I will not vote for, and no senator should vote for, an individual nominated by any president who is not fully committed to fairness and impartiality toward every person who appears before them.

I will not vote for -- and no senator should vote for -- an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

SANCHEZ: So, it's an interesting process, and so much of it has to do with perspective.

As we follow along, Sessions, the ranking Republican on the Senate Judiciary Committee, strongly suggesting that his mind is made up and he'll vote against Sotomayor. But his comments were measured compared to those of Arizona's Jon Kyl. I want you to listen to Mr. Kyl. Here we go.

From the July 13 edition of CNN's The Situation Room:

JESSICA YELLIN (national political correspondent): Key to the Republican opposition are comments Sotomayor made off the bench --that a judge's empathy and that race, class, and gender play a role in deciding cases.

The committee's lead Republican openly worried that Judge Sotomayor would be the kind of justice --

SESSIONS: -- who believe it is acceptable for a judge to allow their personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

YELLIN: But Democrats defended her, saying she'd bring a breadth of experience to the court.

From the July 13 edition of PBS' The NewsHour with Jim Lehrer:

KWAME HOLMAN (congressional correspondent): If confirmed by the full Senate, Sotomayor would be the first Hispanic and the third woman to serve on the high court.

But the committee's top Republican, Alabama's Jeff Sessions, warned Sotomayor might let her background influence her rulings. He cited past statements, such as her oft-quoted hope that a wise Latina woman might render better judgment.

SESSIONS: I will not vote for -- and no senator should vote for -- an individual nominated by any president who believes it is acceptable for a judge to allow their personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying. Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over another. Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it's not law. In truth, it's more akin to politics, and politics has no place in the courtroom.

HOLMAN: Sessions spoke as a former federal prosecutor and unsuccessful nominee for the federal bench, and other Republicans returned to his line of criticism time and again.

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