On August 4, Fox News Supreme Court reporter Shannon Bream reported that "Senate Minority Leader Mitch McConnell renewed his concerns that [Supreme Court nominee Sonia] Sotomayor will govern based on feelings, rather than law," and aired a clip of McConnell saying, "Empathy is only good if you're lucky enough to be the person or group that the judge in question has empathy for. In those cases, it's the judge, not the law, which determines the outcome." But Bream did not mention McConnell's previous votes to confirm Justices Samuel Alito and Clarence Thomas, who discussed the importance of their personal experience during their confirmation hearings.
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From the August 4 edition of Fox News' Special Report with Bret Baier:
BREAM: There are still six unknowns on the Republican side of the aisle, and, today, Senate Minority Leader Mitch McConnell renewed his concerns that Sotomayor will govern based on feelings, rather than law.
McCONNELL [video clip]: Empathy is only good if you're lucky enough to be the person or group that the judge in question has empathy for. In those cases, it's the judge, not the law, which determines the outcome.
BREAM: And McConnell went on to warn that when a judge, and not the law, determines the outcome, our country is headed down a dangerous path. But, so far, not a single Democrat seems to have been persuaded.
Bream ignored McConnell's support for justices who cited personal experience during confirmation hearings
2006: McConnell voted for Alito, who highlighted the importance of his personal experience. 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."
1991: McConnell voted for Thomas, who said: "I can walk in the shoes of the people who are affected by what the Court does." Responding to Sen. Herb Kohl's (D-WI) question during his confirmation hearings in 1991 about why he wanted to be a Supreme Court justice, Thomas stated in part: "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."
Conservatives have repeatedly expressed support for empathy in judicial nominees
Conservative leaders cite Thomas' personal experience, empathy. Conservatives including President George H.W. Bush, Sen. Kit Bond (R-MO), and former Bush administration lawyer John Woo have touted Thomas' "empathy" and personal experience as qualifications.
- Bush cited Thomas' "great empathy." Bush cited Thomas' "great empathy" in his remarks announcing he was nominating Thomas to serve on the Supreme Court.
- Bond cited Thomas' "compassion and understanding." Bond similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans."
- Yoo touted the unique perspective that he said Thomas brings to the bench. In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.
Several Republican senators have cited compassion as a qualification for judicial confirmation. Several former Republican senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation:
- Thurmond repeatedly highlighted importance of "compassion" in Supreme Court justices. During the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."
- D'Amato cited Sotomayor's "compassion" in supporting her nomination as an appellate court judge. During a 1997 Senate Judiciary Committee hearing on the confirmation of several judicial nominations, D'Amato stated: "I predicted to this committee, almost five years ago, that Judge Sotomayor would be an exemplary, outstanding justice. She has demonstrated that, repeatedly. She has shown compassion, wisdom, one of the great intellects on the court."
- DeWine wanted Roberts to "bring to the court your compassion." During Chief Justice John Roberts' confirmation hearing, DeWine stated: "We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been." DeWine continued: "We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people."