Saturday, June 13, 2009

Conservatives Alarmed By Judicial Nominees' "Empathy"

When President Obama said that he wanted to nominate a Supreme Court justice who has empathy, that word alarmed Republicans. Senator Orrin Hatch (R) of Utah, interviewed by George Stephanopoulos, said the following:

What does that mean? Usually that's a code word for an activist judge. But he also said that he's going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.

Senator Pat Leahy (D) of Vermont made it clear that the Supreme Court has its own conservative judicial activists, such as Scalia, Thomas, Alito and Roberts, who consistently favor corporate over individual or employee interests:

We've had a very activist court. We had an activist court that made a decision that allowed employers to covertly discriminate against women so that women wouldn't get paid equally. We in the Congress reversed that with...the first law that President Obama signed into law. I think he wants to have somebody to treat people all the same, whether they're Republicans, or Democrat, men, women, or whatever they may be.

Leahy was referring to the Supreme Court's ruling against Lilly Ledbetter, who was paid less than male colleagues for doing the same work. The Court made it more difficult for workers to sue employers–a ruling reversed when President Obama signed the Lilly Ledbetter Fair Pay Act.

It's clear that conservatives have a problem not so much with "empathy" as with what they see as misplaced empathy. If a judge has empathy for the corporation, the wealthy, the employer, that's fine. If it's for the less well-off, the minority, the worker–well, that's problematic.

Melvin I. Urofsky, writing on "Brandeis and the 'Empathy' Issue" in The Forward, made an interesting comparison between Louis D. Brandeis (above left), the first Jew named to the Supreme Court, and Sonia Sotomayer, the first Hispanic nominee: both were viewed askance by conservatives for the objects of their empathy. Brandeis, nominated by President Woodrow Wilson in 1916, was criticized by the right wing, according to Brandeis biographer Urofsky: the Republican opponents to Brandeis nearly a century ago...they are already pointing with horror to President Obama’s stated criterion of “empathy,” which they say is a thin mask for liberalism and judicial policy-making from the bench.

Although President Wilson did not use the word “empathy,” he clearly had something very similar in mind when he named Brandeis, one of his close advisors, to the Supreme Court. Over the previous decade, the Boston lawyer had made a reputation for himself as one of the country’s leading progressive reformers.

...His opponents saw this concern for the people as evidence of his “hatred” for business and property. “Where others were radical he was rabid,” ranted one newspaper, “where others were extreme he was super-extreme.” Brandeis, of course, was no radical; throughout his life he considered himself conservative but believed that in order to keep the best of our past, reforms were necessary to give workers decent wages, safe jobs and a chance to share in the American dream.

...Sotomayor clearly shares this outlook, and conservatives who see the courts as bulwarks against popular aspirations will oppose her. And as in the case of Brandeis, they will lose. Whether she will, once on the court, do great things, as he did, will not be known for many years. As citizens, we can only hope.


mjmand said...

I've always believed that the quality of a candidate can be determined by those who are upset by his or her nomination. I don't think anything more needs to be said.

Jeff Tone said...

Based on those who have criticized Sotomayor, then, she's a good nominee.