Ignoring Alito, Thomas, Wash. Post labels judicial empathy a "liberal" idea

››› ››› JOCELYN FONG

The Washington Post characterized the view "that a judge should have empathy" as "an idea floating within liberal legal thought," ignoring numerous conservatives who have also stressed the importance of personal experience and compassion in judicial nominees.

In a July 19 article, The Washington Post characterized the view "that a judge should have empathy" as "an idea floating within liberal legal thought," ignoring that numerous conservatives, including Justices Samuel Alito and Clarence Thomas, have also stressed the importance of their personal experience and praised compassion as a judicial attribute.

The Post reported that during her confirmation hearings, Judge Sonia Sotomayor "distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from [President] Obama's view that a judge should have empathy -- an idea floating within liberal legal thought." The article also reported that Doug Kendall, president of the Constitutional Accountability Center, "said liberal legal thinkers must devise new ways to build public support for their ideas to make it easier for Obama to pick outspoken judges," and quoted him saying, "Neither the old progressive idea about the living Constitution nor the new idea of judicial empathy have polled very well."

In fact, then-President George H.W. Bush cited Thomas' "great empathy" when he announced his selection of Thomas to serve on the Supreme Court. And during his confirmation hearing, Thomas cited personal experience as "a contribution" he would make to the court. Thomas said: "And I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, 'But for the grace of God there go I.' "

More recently, during his confirmation hearings in 2006, Alito highlighted his compassion for people involved in immigration and discrimination cases and discussed the importance of his personal experience. Alito stated: "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."

From the July 19 Washington Post article:

Sotomayor has been on the federal bench for 17 years, first as a trial judge in Manhattan and, since 1998, as a member of the U.S. Court of Appeals for the 2nd Circuit. She has a record of rulings that even Senate Republicans said fits within the judicial mainstream.

At her hearings, she distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from Obama's view that a judge should have empathy -- an idea floating within liberal legal thought. And she concealed her views on issues important to the left, including abortion, gun control and same-sex marriage, as well as the civil rights matters Cardin raised.

[...]

Jeff Sessions (Ala.), the Senate Judiciary Committee's ranking Republican, said the White House and Democrats have been hobbled because, despite Democrats' strong victories in recent elections, public attitudes have not moved correspondingly. "The left's view of judges is not supported by the people," Sessions said.

Kendall said liberal legal thinkers must devise new ways to build public support for their ideas to make it easier for Obama to pick outspoken judges. "Neither the old progressive idea about the living Constitution nor the new idea of judicial empathy have polled very well," he said.

As it is, [Rep. Jerrold] Nadler [D-NY] said, "it will take a president with a lot of nerve" to nominate a justice substantially further to the left.

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