Following President Obama's May 1 statement in which he discussed the qualifications he will use to select a Supreme Court nominee to replace retiring Supreme Court Justice David Souter, media figures and outlets have falsely suggested that Obama said that he will seek a replacement for Souter who demonstrates the quality of “empathy” rather than a commitment to follow the law. In fact, in that statement Obama said that his nominee will demonstrate both. Other media have stated or advanced the claim that, in the words of a May 4 National Review editorial, "[e]mpathy is simply a codeword for an inclination toward liberal activism." But two recent studies of Supreme Court justices indicate that by their measure, those most frequently labeled “conservative” were also among the most activist. Moreover, several former Republican senators have previously cited “compassion” as a qualification for judicial nominees.

In his May 1 statement, immediately after stating that he saw the “quality of empathy” as “an essential ingredient for arriving as just decisions and outcomes,” Obama stated that he would “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”:

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.

In some instances, media figures and outlets have ignored Obama's full statement and suggested he took the position that “empathy” and adherence to the law are mutually exclusive. For example:

• On the May 1 edition of Fox News' Special Report, congressional correspondent Major Garrett aired only the portion of Obama's May 1 remarks in which Obama said: “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.” Garrett then said: “That aggravates those who believe justices should follow the Constitution and legislative intent.”

• On the May 1 edition of Fox News' O'Reilly Factor, guest host Laura Ingraham asserted: “Empathy, identifying what the average people's lives and hopes and dreams -- again, that is not in the Constitution.” She added: “That is not the role of the Supreme Court justice [...] The role of the justice is to faithfully review the Constitution, the applicable federal laws, and determine an outcome. They're not representing. Congress is supposed to be representing.”

Additionally, in a May 6 Washington Post article, staff writers Scott Wilson and Robert Barnes wrote that "[a]s White House press secretary Robert Gibbs put it, Obama is looking for 'somebody who understands how being a judge affects Americans' everyday lives.' Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it." But the Post did not note Obama's statements indicating that he supports a nominee who “honors our constitutional traditions” and “respects ... the appropriate limits of the judicial role.”

Moreover, echoing National Review's claim that "[e]mpathy is simply a codeword for an inclination toward liberal activism," in a May 4 article, The Associated Press reported: “When he was discussing the qualities he would seek in Souter's successor, Obama said he wanted someone with empathy for average Americans. Conservatives fear that means the president would consider 'judicial activists' for the seat.” Similarly, in a May 5 article, Roll Call reported: “Conservatives and Senate Republicans are already casting wording such as 'empathy' as code for liberal, activist judges. They hope to frame the debate over the nominee even before Obama's selection is announced.”

But as Media Matters for America has repeatedly noted, it is a myth that conservatives cannot be judicial activists. Indeed, a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled “conservative” were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled “liberal” were the least likely to strike down statutes passed by Congress.

Also, a recently published study by Cass R. Sunstein (recently named by Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism -- the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's “conservative” justices were the most likely to engage in “judicial activism” while the “liberal” justices were most likely to exercise “judicial restraint.”

Further, several former Republican senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), have previously cited compassion as a qualification for judicial confirmation. For instance, 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.”

Similarly, during the September 30, 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 [Sonia] 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.” Additionally, 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.”

From the May 6 Washington Post article:

He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.

As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans' everyday lives.”

Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.

From the May 4 National Review editorial:

The papers are now full of speculation about Souter's replacement, complete with fine distinctions among different species of liberals that will make almost no difference in how the eventual justice votes. President Obama says that he is looking for someone who will have “empathy” for, among others, single mothers and gays. He is not looking for someone with empathy for small-business owners: Empathy is simply a codeword for an inclination toward liberal activism. Obama announced during the campaign that he would also look for someone loyal to Roe v. Wade rather than to the Constitution it traduced. “News analyses” stress that Obama is a “pragmatist” who does not care about high-flown legal theories. Just so: He cares about getting another vote for liberal results.

From the May 3 edition of Fox Broadcasting Co.'s Fox News Sunday:

WALLACE: Senator Durbin, with so much on his plate, should President Obama shy away from a fight on a Supreme Court nominee and pick someone who appeals across party lines?

DURBIN: Well, there doesn't have to be a fight. And I think what the president said when he spoke to Justice Souter is an indication of what he's looking for.

He's looking for someone who has the right legal credentials, someone who is honest and forthright and understands their responsibility on the Supreme Court.

I might disagree a little bit with my colleague, Senator Ensign -- hard to imagine someone, after 30 or 40 years of experience in the law, who hasn't taken a position on some issue. That's going to happen.

We just need to make certain that person is using sound reasoning to reach that position, and that they're fair in the way they approach it.

And when I take a look at the names, even those from Illinois, they are extraordinary that may be considered for this. But I don't have any inside information in terms of who it might be.

WALLACE: Let me ask you -- let's follow up on that, Senator Durbin. The president talks about wanting somebody with empathy and understanding -- his words. Whatever happened to just applying the law?

From the May 1 edition of Fox News' O'Reilly Factor:

INGRAHAM: Empathy -- but I just want to be clear. Empathy, identifying what the average people's lives and hopes and dreams -- again, that is not in the Constitution.

RICHARD GOODSTEIN (Democratic attorney): No.

INGRAHAM: That is not the role of the Supreme Court justice, Richard.

GOODSTEIN: Of course.

INGRAHAM: The role of the justice is to faithfully review the Constitution, the applicable federal laws, and determine an outcome. They're not representing. Congress is supposed to be representing.

From the May 1 edition of Fox News' Special Report with Bret Baier:

GARRETT: Mr. Obama spoke to Souter after receiving this letter saying the justice would resign at the end of the court session in June. In saying farewell to Souter, Mr. Obama appeared to delight in his record of disappointing conservatives.

OBAMA [video clip]: He never sought to promote a political agenda, and he consistently defied labels and rejected absolutes, focusing instead on just one task: reaching a just result.

GARRETT: The evident pleasure the president and his advisers took in the prospect of filling the Souter vacancy is likely to rankle conservatives even more, especially in light of this description of how the president hopes his nominee will interpret the law.

OBAMA [video clip]: 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.

GARRETT: That aggravates those who believe justices should follow the Constitution and legislative intent.

From the July 20, 1993, confirmation hearing for Ginsburg (retrieved from the Nexis database):

THURMOND: Over the years I have determined the special qualifications I believe an individual should possess to serve on the Supreme Court.

First, unquestioned integrity. The nominee must be honest, absolutely incorruptible, and completely fair.

Second, courage. A nominee must possess the courage to decide tough cases according to the law and the Constitution.

Third, compassion. While a nominee must be firm in his or her decisions, they should show mercy when appropriate.

Fourth, professional competence. The nominee must have the ability to master the complexities of the law.

Fifth, proper judicial temperament. The nominee must have the self discipline to base decisions on logic, not emotion, and to have respect for lawyers, litigants and court personnel.

Sixth, an understanding of the majesty of our system of government. The nominee must understand that only Congress makes the law; that the Constitution is changed only by amendment; and that all powers not specifically delegated to the federal government are reserved to the states.

These are the essential qualities which determine the fitness of an individual to serve on the court, and it appears to me that Justice Ginsburg possesses them.

From the July 12, 1994, confirmation hearing for Breyer (retrieved from the Nexis database):

THURMOND: Over the years I have determined the special criteria which I believe an individual must possess to serve on the Supreme Court, and they are as follows:

First, unquestioned integrity. A nominee must be honest, absolutely incorruptible and completely fair.

Second, courage. A nominee must possess the courage to make decisions on different issues according to the laws and the Constitution.

Third, compassion. While a nominee must be firm in his or her decisions, mercy should be shown when appropriate.

Fourth, professional competence. The nominee must have mastered the complexity of the law.

Fifth, proper judicial temperament. The nominee must have the self-discipline to prevent the pressures of the moment from disrupting the composure of a well-ordered mind and be courteous to the lawyers, litigants and court personnel.

Sixth, and understanding of an appreciation for the majesty of our system of government. It's separation of powers between the branches of our federal government; it's division of powers between the federal and state governments; and the reservation to the states and to the people of all powers not delegated to the federal government.

[...]

While I may not agree with Judge Breyer on every issue, I have found him to be a man of keen intellect and he appears to possess the necessary qualifications to serve as an associate justice of the United States Supreme Court.

From the September 30, 1997, Senate Judiciary Committee hearing of three federal judges (retrieved via the Nexis database):

D'AMATO: As it relates to Justice Sotomayor, what can one say but “only in this country.” The daughter of a humble working family has risen by way of her legal, scholastic stewardship to the highest trial court in the federal district of, and premier district I might add with some prejudice, of the Southern District of New York where she has distinguished herself.

And 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.

Her experience, both as a prosecutor, civil litigator, and federal trial judge, makes her an exceptionally qualified candidate for the Second Circuit.

From the September 14, 2005, confirmation hearing for Roberts (retrieved via the Nexis database):

DeWINE: I think this country needs you to remember how you got here and who you met along the way. 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. 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. When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth.

Those values are strong, they are true. The president saw them when he nominated you. And we are certainly seeing them this week.

I must say, sir, they must never leave you.