July 14, 2009

Did you notice how Sonia Sotomayor has backed away from any identification with Obama's notion that "empathy" is a component of judging?

I sure did, as you can see here. I'm on the phone doing a call-in show on Minnesota Public Radio during the Judiciary Committee's lunch break today:

For reference, here's what Obama said about "empathy," and here's what he said about "heart."

And now read the whole interchange between Sonia Sotomayor and Senator Jon Kyl. Let me highlight some of it:
KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon. And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart?

SOTOMAYOR: No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge.

KYL: ... [H]ave you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law says.....

KYL: ... Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.


traditionalguy said...

Please keep your analysis under wraps a while, dear Professor. The Progressive wing of the Soroso-crats will start calling in chits and force Obama to withdraw a damn good nominee.

EnigmatiCore said...

I find it very interesting that Sotomayor finds it in her own interest to distance herself from her own obviously deeply held beliefs, especially when she would seemingly get confirmed without difficulty by espousing them instead.

rhhardin said...

I don't get the empathy riff, either.

If it's something beyond ordinary understanding of langauge, not that that's been made into a system. You could make empathy work like putty does to a carpenter. It fills gaps in the handiwork.

But you don't stress the need for putty. You stress the need for handiwork.

rhhardin said...

Sotomayor will say anything. That's been established.

It's likely to continue on the Supreme Court.

She's a Harriet Meyers, only a liar as well.

The Dude said...

Harriet Myers was a racist?

EnigmatiCore said...

"Sotomayor will say anything. "

A LOT of people will say anything, particularly in this position-- about to become (even more) set for life, empowered to be one of the most powerful people in America for the rest of her life, bound to be adored by at least half of the American population for life (admittedly, while held in less high regard by the other half).

What I find interesting is why she feels the need to say anything in this circumstance. She could say what she believes and get confirmed, yet seems to feel the need to disassemble.

That is fascinating.

The Dude said...

Jesus Christ - just saw Dear Leader throw out the first pitch at the All Star game - that lefty throws like a girl.

rhhardin said...

Sotomayor would have been better off saying she'd be a better judge than a white guy because she'd be slower to believe things.

A line proposed by Vicki Hearne, here, specifically for blacks and Hispanics.

Being slow to believe may be better in a lower court, however, I guess.

rhhardin said...

You too can throw like a girl. Just use your other hand. It's pretty amazing.

I think the trouble is that the footwork is screwed up.

Jim said...

Along the same lines that previous commenters have noted, Michael Seidman (Georgetown Law Professor, clerk for Thurgood Marshall, no "right-winger" by any means) had this to say:

Speaking only for myself (I guess that's obvious), I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Matt said...


> She's a Harriet Meyers, only a liar as well. <

Ummm that comment isn't in the vicinity of being accurate. It's okay to have opinions but you can't make up your own facts. Sotomayor has been a judge for 17 years at a high level and has heard appeals in more than 3,000 cases just in the last ten years. Miers [your spelling is wrong] was a lawyer and a White House council. Huge difference. Sotomayor is more than qualified. You just don't like her because Obama picked her. Admit it.

The Dude said...

I can throw like a man with either hand. Might put a bit of sidearm into it, but the man thing is getting one's shoulder and elbow back. Barry needs to consult with his big armed wife - she can teach him how to throw and how to grow a pair.

rhhardin said...

Sotomayor shows herself today to be empty-headed, just like Miers uncovered written works showed her to be empty-headed.

``I'm underwhelmed'' will be the reaction.

No doubt they're nice people but we don't want nice people.

rhhardin said...

NKVD, pay attention to your footwork. That ought to screw it up for one hand.

traditionalguy said...

As the world turns. First she is condemned on suspicion of being a closeted empathatic, activist Judge. Now when we first get to meet her, she is no such thing. As a result the card carrying Righties say it clearly proves her a liar, while the card carrying Lefties are steamed and disappointed in her being a wimp. Everyone wanted to see a fake wrestling show for their pet ideology, and she only turns out to be a nice and highly experienced jurist. Why, that's No Fun at all. The Senate will probably vote 100 to 0 to deny her on the grounds that she is a terrible bore.

rhhardin said...

I think Meirs was Goehring's adopted name.

rhhardin said...

I think both the right and the left wanted her to say what she actually thought.

That she didn't turns out to be the worst thing possible.

A fear of intellectual engagement.

A vote for whatever she wants on the Supreme Court.

RLB_IV said...

She should be confirmed because she cannot be bought.

Jason (the commenter) said...

I happily agree. Does everyone else love Althouse's expression when she's done giving that answer?

Someone should paint that.

Matt said...


Have you actually read any of Sotomayor's opinions? If you did you would not say she is 'empty-headed'. Look, I disagree with Scalia and Thomas often but I wouldn't call them empty-headed.
They simply have a more traditional / conservative view of the law which I tend not to agree with. Sotomayor is actually less Liberal than they are Conservative. Of the numerous cases she has opined her views have come down only 'Liberal' about 55% of the time.

Kirby Olson said...

So she laughed at Obama and said he didn't have good judgement in terms of how he thought about judging. How about his judgement in picking her? Bad judgement?

It's clear the "empathy" thing is a very poor idea and shows that Obama has very poor critical thinking skills. There are at least a thousand words that describe what a good judge should have that would trump "empathy."

Empathy is the worst possible criterion for choosing a judge.

"Principled," would be the best term. But I don't think that Obama knows that word.

At any rate, once Sotomayor gets done cheating her way through this oral, we'll find out that she really does believe all the things she said when she said them in less trying circumstances. At this point she's just another criminal trying to save her skin.

Ann Althouse said...

"Does everyone else love Althouse's expression when she's done giving that answer?"

Keep in mind that I'm on the radio, but alone in my room. I'm trying to produce a good voice, with expression, and I'm not thinking at all about how I look. I made a video recording with some thought that I'd have something I'd want to use embedded on the blog, but I was not paying any attention to the video (as I do when I make a Bloggingheads recording).

Ann Althouse said...

(That's why I'm waving my hand around a lot.)

rhhardin said...

Have you actually read any of Sotomayor's opinions?

Of course not. I'm going by what she says.

Her behavior towards langauge, as Paz put it.

garage mahal said...


rhhardin said...

Empathy means, in the context of the legal system, deciding against white people because everybody else deserves a chance more than them.

A few decades ago people went along, but fewer and fewer as time went on, until today it's not a viable political position among the majority.

I think court ordered bussing was what kicked the skids out from under majority goodwill, now long ago.

Matt said...

Schumer pointed out something today I thought was a good observation. He said Sotomayor is being considered for the Supreme Court but no one is citing her cases [which is where you make determination] instead they are looking at what she has said in speeches that actually have no actual affect on the law. Then he laid out numerous cases in which she has completely followed the letter of the law over empathy or sentiment.
The one exception is the New Haven case, which if you read it you can see she is sticking with precedent to the law as it relates to a cities decision to apply a test or not.

rhhardin said...

The deal with the Supreme Court is that she's no longer bound by precedent.

She's a loose cannon for life there.

Matt said...

Kirby Olson

Where do you stand on eminent domain? When a case comes up that takes the land and the house of an old woman or someone you know do you look at the law or do you take a populist [empathetic] view that the government or corporations should not have the right to take land?
Most conservatives cry long and loud about eminent domain cases. That to me is showing empathy. Would you call it poor critical thinking skills if a judge allowed personal feeling to get in the way of someone losing their home?

Dare I ask about Roe v Wade?

Understand that empathy does play a roll and it need not be for such highly charged cases as these mentioned. Also look at what Obama actually said about empathy. He simply said human beings have to take into consideration the lives of others. Alito says he considers his emigrant parents in some cases. Is he wrong to do that?

LonewackoDotCom said...

How many of you have sent emails to your friends saying that SS is a liar and asking them to - after doing due diligence - contact as many national leaders as possible expressing your opposition to her? Commenting here is great, but it also needs to go to those who aren't paying close attention and who might have a few minutes to spare to make a phone call.

Also, I have a request. I'd like to say that the author of this is lying, but I want to make sure that what he claims is an inaccurate representation of the ad. Could someone watch the video and provide an accurate transcript? It's only a few seconds.

After I get that I'll make a post about him designed to show to those searching for his name that he's a liar (assuming, of course, that his description doesn't match the video).

rhhardin said...

The constitutional question with takings for public use is what a public use is, not what empathy is.

rhhardin said...

You post here instead of sending letters because the point is to find the right words for things, not to change things.

holdfast said...

Matt: "White House council"

Homonyms are hard? It kind of undercuts your snark.

JAL said...

President Obama needs to nominate Ann Althouse for the US Supreme Court.

Ralph L said...

Miers [your spelling is wrong] was a lawyer and a White House council [your spelling is wrong] That would be "White House Counsel."

I think there's a world of difference between "judging" and being a Justice. Obama wants that empathy on the SCOTUS, he doesn't care about actual trials.

holdfast said...

And yet Obama voted against the otherwise well qualified Alito because he lacked empathy? Perhaps hidden empathy is enough?

Jim said...

Matt -

"Most conservatives cry long and loud about eminent domain cases. That to me is showing empathy. "

Then that is a fundamental misunderstanding of conservatism. Conservatives "cry long and hard" about eminent domain because of the principle that a person has a right to the property that they have earned, and if the government is going to take it then there damned well better be a better reason than just because the state wants to make money off my land.

It has to do with property rights and the rights of the individual vs. the oppression of the government and understanding that the presumption should always be in favor of the individual.

Jim said...

holdfast -

"And yet Obama voted against the otherwise well qualified Alito because he lacked empathy?"

Obama voted against Alito because he lacked a (D) behind his name. Funny that he thinks others shouldn't employ his own standard when it's his turn to choose.

former law student said...

I find it very interesting that Sotomayor finds it in her own interest to distance herself from her own obviously deeply held beliefs

This is completely wrong while the professor got it partially right: "empathy" was Obama's notion, not Sotomayor's. I haven't seen any evidence that Sotomayor ever embraced Obama's notion, so how could she have backed away from it?

traditionalguy said...

JAL...The Professors Blog has enough quotes to make her confirmation hearings need 40 days of Senatorial cross examination. Not only that, but Althouse would be guilty by association with her good, bad, and ugly commenters.If she was to make it onto the Court, she would climb quickly to the top, as the weaker minds would soon give up and resign.

Anonymous said...

The one thing that is obvious is that Sotomayor is far, far less impressive before the committee than either Roberts or Alito. Her mind doesn't appear to be as sharp, and her grasp of the law is several planes below theirs.

I suspect that, given the length of time she has been mentioned for the Supreme Court, she had her pick of very good law clerks.

Anonymous said...

The sad thing is that, because she pales in comparison to Roberts and Alito, she looks more and more like nothing more than an affirmative action pick. This is the wisest Latina women Obama could come up with?

former law student said...

she pales in comparison to Roberts and Alito

Huh? Sotomayor's record parallels Alito's, only it is more impressive at every point.

Except for clerking; Sotomayor went right into practice.

Jim said...

Henry -

"The one thing that is obvious is that Sotomayor is far, far less impressive before the committee than either Roberts or Alito. Her mind doesn't appear to be as sharp, and her grasp of the law is several planes below theirs."

I have to second your observation. Sotomayor has had more than enough time, and obviously plenty of prep work, to come up with far better explanations for her statements than she has been able to produce thus far. That she has been unable to provide even the excuses that some of our Leftist friends here have come up with is telling in the extreme about her lack of intellectual agility.

Graham had her flummoxed on the definitions on various judicial philosophies. It was something that was obviously going to be asked of her, yet she fumbled and stumbled when trying to come up with sufficient definitions.

When even the AP is pointing out how badly a Democratic nominee performed, you know it was a very bad day indeed.

traditionalguy said...

Henry Buck...Sotomayor may have a style that you do not approve of, but you must admit that she is not an activist Judge. Perhaps she has too much good will and courtesy built into her conversational skills for you. Maybe you want to see a surgeon's confidence in cutting to the jugular of an intellectual opponent? But those are not the social skills needed in governance among a free, and perhaps a little less brillant than you, citizenry in a free (last time I looked) country. Try applying your announced judicial standards of quick repartee and dominating witty argument to Clarence Thomas, and tell me where he stacks up for you.

PatCA said...

I cringed when she said "it was bad" about one of her own carefully crafted, oft-repeated statements!

The craven pandering of it! Hard to watch.

Come to think of it, though, she does that a lot. "I was just trying to inspire the students" by lying to them.

Zachary Sire said...

Oh, I think it's fine if the judges have empathy. They probably all let their empathy, in one way or another, influence their decision (except for probably Scalia, because he's a monster).

But talking about it, as NObama did, and bringing it to the surface, well, that's a no-no. Just let it be an unspoken thing.

By the way, Althouse's phone is outrageous!

William said...

Sight reading: she seems to be intelligent and honorable enough to be a member of SCOTUS. But so were Alito and Roberts. My argument with Democrats is that they are not willing to extend that same level of tolerance towards such men......There's also the possibility that she is a grind with grudge. In the fullness of time, perhaps many attorneys will repeat that "wise Latina" remark with hollow, mocking laughter as they walk dejectedly down the courthouse steps. But maybe not. For now, the bare facts are that she has paid her dues and deserves her shot.

Jim Hu said...

Reading some of the coverage, it suddenly dawned on me that empathy may have played a role in Ricci v. New Haven in a way that I have not seen others consider.

rhhardin said...

Imus's Warner Wolf says Sotomayor was off the scale on the blink meter on certain subjects.

If you normally don't blink but blink a lot on something, it's a sign of not telling the truth, according to an FBI course he took, he says.

It counts as body language.

rhhardin said...

There was a cartoon described to me in the 70s probably, guys on a sailing ship watching an approaching pirate ship with large bunny rabbit head on the bow and bunny rabbit tail on the stern.

``I don't like the looks of this.''

Just so with Sotomayor.

Anonymous said...

t-guy -

It wasn't her style that was disapointing, I don't care if judge's "style" is like Scalia, Souter or O'Connor. What was impossible to ignore (even for Obama supporters) was Sotomayor's obvious dissembling about her prior statements and her inability to answer substantive questions about the law with any degree of sophistication. This exchange with a friendly Senator inspires no confidence in her legal thinking:

FEINGOLD: But what would be the general test for incorporation?


FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...


SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

MadisonMan said...

I also wave my arms around while giving remote training over the phone, because it really does improve the cadence of the presentation. It's hard to convey anything but boredom if you speak without body motion.

Jim said...

rhhardin -

"Imus's Warner Wolf says Sotomayor was off the scale on the blink meter on certain subjects.

If you normally don't blink but blink a lot on something, it's a sign of not telling the truth, according to an FBI course he took, he says."

It was something that struck me immediately as I was watching yesterday as well, and I commented on it to my wife happened to have the day off from her psychology doctoral studies.

We were both in agreement that even if you had the volume turned completely down, it was plainly obvious that the even Sotomayor didn't believe a word that she was saying.

X said...

I've met a lot of people that are government employees in my career. Of all of them, Harriet Miers is the only one that actually refused to do her personal business on taxpayer time. The only one who wouldn't do it on her employers time public or private sector. So while you may think she's as dumb as a box of hammers, she most likely has more integrity than you.

Kirby Olson said...


Let me think about your question about EMINENT DOMAIN. I haven't ever thought about that.


holdfast said...

Blogger Jim said...
Obama voted against Alito because he lacked a (D) behind his name. Funny that he thinks others shouldn't employ his own standard when it's his turn to choose."

Well DUH - I was talking about her stated reason.

How can it be that this wise Latina is getting her butt kicked by Lindsay "sounds and runs like a girl" Graham?

holdfast said...

Sorry, HIS (Obama's) stated reason.

Since he was obviously planning to run for president, you think he might have had the foresight not to be such a dick on judicial confirmations - but noooo he had o be the hyper-partisan Democrat that he is.

Charlie said...

Quick History Lesson:

The Fabian Socialists in England at the turn of the previous century (G. B. Shaw, H. G. Wells, the Webbs) explicitly argued that it was okay to dissemble to the public because we lacked their refined sensibilities to know what was in our own best interest.

That thinking has been part of the DNA of every far left movement since.

ZZMike said...

The other question is, is she still affiliated with La Raza?

Looking at her past rulings, we see that she comes down squarely for confiscation by eminent domain.

Sotomayor and eminent domain

"But [Justice Sevens] was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion -- one that makes Justice Stevens look like a paradigmatic defender of strong property rights."

Matt: When the NYT says "Selected Cases", they really mean that. Carefully selected cases.

former law student said...

ZZMike said...
The other question is, is she still affiliated with La Raza?

Yes. Apparently, once confirmed, Sotomayor will declare the Gadsden Purchase to be unconstitutional. I've already sent for my Application for Aztlan Passport. Unfortunately it's all in Spanish/Apache.

Lance said...

The one exception is the New Haven case, which if you read it you can see she is sticking with precedent to the law as it relates to a cities decision to apply a test or not.

Matt, I largely agree with your take on Sotomayor as a qualified candidate. She's obviously smart and experienced.

But I disagree with your characterization of the 2nd Circuit panel's Ricci summary order. No precedent was cited in that order. The panel held that the New Haven board was simply trying to satisfy Title VII. In the Supreme Court ruling, even the dissent agreed there was no precedent, and that the case deserved a much fuller hearing (which fortunately it ultimately received).

cf said...

Taranto quotes you as saying:
"Obama comes from the law academia environment that I'm very familiar with [she's a law professor at the University of Wisconsin] where that talk about "empathy" is what you hear all the time. It's very normal, it's "sophisticated," and I can understand how Obama has just been soaking in that. And then when he, as a former constitutional law professor, comes to us and starts to tell us about law, I can really understand how he thought he was saying something profound and meaningful."

He was not a FORMER CONSTITUTIONAL LAW PROFESSOR. He was a part time instructor. As you know there's a big difference and it isn't helpful to have people like you who know the difference repeating this falsehood.

Jim C. said...

Jason (the commenter) said, Does everyone else love Althouse's expression when she's done giving that answer?

I like it. It shows a hint of the steel behind her usual somewhat chirpy exterior. She should use it for her blog profile picture.

rhhardin said...

Best of the Web cites Althouse on this, though as is often true of BotW, it makes no apparent sense.

It's probably one of those insights that he'll wonder about writing later. A Sotomayor experience. Empathy.

cf said...

BotW makes perfect sense to me , but then he always does.

I don't mean to suggest that Ann's overall point was incorrect. I think Obama is not terribly bright and has gotten by through his ability to quickly pick up the in vogue phrase of the day.

When I went to the University of Wis law school I was a legal writing instructor in my third year. If I indicated that I had been an assistant professor of appellate litigation, real professors there would have every right to be annoyed. University of Chicago professors are none too happy about the Obama puffery.

Unknown said...

This marathon analogy question refers to the "Letter of the Law" and the "Spirit of the Law". "Letter of the Law" is the text or wording of a law, and "Spirit" is the way the writers of the law intended its interpretation.

Judges should uphold the spirit or intent of the law. It is important to have empathy and a lot of experience as a judge in order to interpret the “Letter of the Law” correctly, so they may uphold the “Spirit of the Law”.

It was a tricky or poorly worded question because her answer could have easily been taken out of context because the majority of Americans are not familiar with this marathon analogy. This question prompted her for an answer which may imply that she would make decisions based on her heart instead of the law which is wrong.

Sonia answered the question well enough by saying that she will follow the laws.

Further Info: http://en.wikipedia.org/wiki/Letter_and_spirit_of_the_law