A Rasmussen poll asked whether President Obama believes “Supreme Court justices should decide cases based on what's written in the Constitution and legal precedents or does he believe they should decide cases by a sense of fairness and justice,” and gave no indication whether respondents were given the choice to say both. In fact, Obama has stated that he is looking for justices that both follow the law and have empathy.
Rasmussen advances falsehood that Obama seeks fairness at the expense of following the law
Rasmussen sets up false contrast between justices making decisions based on the law or based on a “sense of fairness and justice.” From a Rasmussen poll conducted April 8-9:
2* Should the Supreme Court make decisions based on what's written in the Constitution and legal precedents or should it be guided mostly by a sense of fairness and justice?
60% What's written in the constitution
31% It should be guided by fairness and justice
9% Not sure
7* Does Barack Obama believe Supreme Court justices should decide cases based on what's written in the Constitution and legal precedents or does he believe they should decide cases by a sense of fairness and justice?
32% What's written in the Constitution
44% By fairness and justice
23% Not sure
Whelan falsely asserts that the Rasmussen poll shows that “Americans overwhelmingly reject President Obama's lawless empathy standard for judging.” From an April 12 post on National Review Online's Bench Memos blog:
According to the latest Rasmussen Reports poll, Americans overwhelmingly reject President Obama's lawless empathy standard for judging: By a margin of 60% to 39% [sic], likely voters believe that the Supreme Court "[s]hould ... make decisions based on what's written in the Constitution and legal precedents" rather than “be guided mostly by a sense of fairness and justice.”
Obama: Judges can -- and should -- demonstrate both a commitment to law and empathy
Obama in 2009: “I will seek” a nominee who has the “quality of empathy” and “is dedicated to the rule of law.” In 2009, media fixated on a statement Obama made that “I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes” to push the notion that this statement “aggravates those who believe justices should follow the Constitution and legislative intent.” But in the very next sentence Obama stated: “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.” Obama added, “I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.” From Obama's May 1, 2009, statement:
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
Obama in 2010: “I will seek” nominee who has “a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.” In a 2010 statement on the retirement of Supreme Court Justice John Paul Stevens, Obama reiterated that he would seek someone who has both “a fierce dedication to the rule of law” and a “keen understanding of how the law affects the daily lives of the American people.” Obama added that he will seek a nominee “who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” From Obama's April 9 statement:
When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant, non-ideological, pragmatic, and committed above all to justice, integrity, and the rule of law. He found that nominee in John Paul Stevens.
Once again, I view the process of selecting a Supreme Court nominee as among my most serious responsibilities as President. And while we cannot replace Justice Stevens' experience or wisdom, I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.
Conservative justices cited personal experience during confirmation hearings
Alito highlighted the importance of his personal experience. During his confirmation hearing in 2006, Alito highlighted his compassion for people involved in immigration and discrimination cases and discussed the importance of his personal experience, saying: “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.”
Thomas: “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 serve on the Supreme Court, Justice Clarence 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. 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.”
So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court.
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 Yoo touted Thomas' “empathy,” “compassion,” 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.”