Newsmax claims Obama's “empathy standard” conflicts with following the law

From an April 9 Newsmax post:

Several conservatives expressed the concern that President Obama would appoint a jurist who relies on empathy and social-justice sentiments rather than basing decisions on the original intent of the authors of the Constitution.

The president introduced his so-called “empathy standard” when he nominated Justice Sonia Sotomayor.

“President Obama needs to replace Justice Stevens with a person who will apply the Constitution strictly and not substitute their own political beliefs for the rule of law,” Tom Fitton, the president of the conservative Judicial Watch organization, advised Newsmax in an e-mail. “If President Obama nominates an 'empathetic' liberal judicial activist, he will have a fight on his hands.

”With looming constitutional challenges concerning Obamacare and new rights for foreign terrorists, the United State Senate should ensure that only a judge who will strictly interpret the U.S. Constitution is approved. Given the stakes, every U.S. senator should know that the upcoming Supreme Court vote will be as closely watched as their votes on Obamacare."

Obama said he would seek nominees who demonstrate commitment to law and empathy

Obama made clear that judges can -- and should -- demonstrate both a commitment to law and empathy. Newsmax did not cite evidence for the claim that Obama “introduced his so-called 'empathy standard' ” with the Sotomayor nomination. Media have fixated on Obama's statement 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.” He 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.”

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.”