Goldberg suggests conservatives do not invoke empathy standard in considering judicial nominees

Goldberg: Conservatives invoke the Constitution, “rather than the indefinable feeling of 'empathy.' ” In an April 14 column, Goldberg criticized President Obama's statement in which he cited the “quality of empathy, of understanding and identifying with people's hopes and struggles” as a quality in considering a judicial nominee. Goldberg wrote: "[T]he empathy-for-the-little-guy standard is simply a Trojan horse for an approach just as abstract as any endorsed by the right. In fact, I'd say it's more abstract because at least there's a text conservatives invoke -- the Constitution -- rather than the indefinable feeling of 'empathy.' " From Goldberg's column:

President Obama and the vast majority of Senate Democrats believe that Lady Justice should peek from under the blindfold every now and then.

Obama opposed both of President Bush's Supreme Court appointees, John Roberts and Samuel Alito, presumably because they lacked what he called the “quality of empathy, of understanding and identifying with people's hopes and struggles.”

[...]

Last week, the president offered a more populist spin, saying he wants a nominee who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” The Associated Press calls this a “fight-for-the-little-guy sensibility.”

Obama and countless other liberals think this sort of compassion in the law is “pragmatic” because it pays heed to the real world and real people as opposed to legalistic abstractions such as impartial justice.

[...]

Meanwhile, Justice Clarence Thomas was born dirt poor and black in rural Georgia and spends his vacations exploring America in an RV. But those same liberals insist he doesn't understand poverty and race the way Stevens does. How do they know? Because they don't like his rulings.

In other words, the empathy-for-the-little-guy standard is simply a Trojan horse for an approach just as abstract as any endorsed by the right. In fact, I'd say it's more abstract because at least there's a text conservatives invoke -- the Constitution -- rather than the indefinable feeling of “empathy.”

Conservative justices Thomas, Alito cited personal experience during confirmation hearings

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.”

Alito highlighted the importance of his personal experience. During his Supreme Court confirmation hearing in 2006, Justice Samuel 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.”

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.”