Sessions, speaking Saturday in the Republican Party's weekly radio address, said that President Barack Obama's decision to include whether Supreme Court candidates can put themselves into the shoes of petitioners -- the "empathy standard" -- as a criteria would undermine the "great tradition" of a neutral and independent judiciary, the Washington publication The Hill reported.
"With this view -- that a judge should use his or her personal feelings about a particular group or issues to decide a case -- it stands in stark contrast to the impartiality that we expect in the American courtroom," Sessions said. "If a judge is allowed to let his or her feelings for one party in the case sway his decision, hasn't that judge then demonstrated a bias against the other party?"
President Obama has begun road-testing his 2012 campaign message this week in a series of speeches that can be boiled down to a single word: compassion.
“The America I know is generous and compassionate,” Obama said in his speech on the debt Wednesday .
At a Democratic National Committee fundraiser Thursday night in Chicago, Obama reiterated his “belief in an America that is competitive and compassionate,” contrasting that with a Republican Party that “is entirely sincere that says we no longer can afford to do big things in this country ... (that) we can’t afford to be compassionate.”
For almost two years now, Republicans have issued dire warnings about an urgent threat to the Constitution emanating from the Supreme Court. What is this menace? A Justice's capacity for empathy, what Senator Lindsay Graham has called the "absurd, dangerous standard" by which President Obama has promised to evaluate Supreme Court nominees.
Such warnings have generally struck Democrats as politically convenient and intellectually preposterous, but in light of the recent ruling in the Phelps case, they might want to reconsider. We have seen the face of empathy on the Supreme Court, and his name is Sam Alito.
by John Paul Rollert Lecturer in Business Ethics and Leadership, Harvard Extension School
Through it we see that Alito expresses feelings mostly for people who are a lot like him. Republicans pummeled Obama when he named empathy as a quality worth pursuing in his Supreme Court nominees. But they don’t complain about Alito, whose record shows that selective empathy can be deployed in the service of piling vote upon conservative vote.
We cannot let conservatives get away with redefining empathy as irrational and idiosyncratic personal feeling. Empathy is the basis of our democracy and its true meaning must be defended.
Let's start with the attack on empathy. Why empathy? Isn't empathy a good thing?
Empathy is at the heart of progressive thought. It is the capacity to put oneself in the shoes of others -- not just individuals, but whole categories of people: one's countrymen, those in other countries, other living beings, especially those who are in some way oppressed, threatened, or harmed. Empathy is the capacity to care, to feel what others feel, to understand what others are facing and what their lives are like. Empathy extends well beyond feeling to understanding, and it extends beyond individuals to groups, communities, peoples, even species. Empathy is at the heart of real rationality, because it goes to the heart of our values, which are the basis of our sense of justice.
What is empathy? Is this your personal feeling that you had a tough childhood or some prejudice that you have--you are a Protestant or a Catholic or your ethnicity or your race or some bias you brought with you to life and to the court? Is that what an empathy is? Well, it has no objective meaning, and that is why it is not a legal standard. The oath of ``impartiality'' to ``equal justice to the rich and the poor alike'' is violated when such things infect the decision making process.
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 at 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.
Gauging views of the American people on Supreme Court justices suggests that while empathy is in the eye of the beholder, it's a value most people favor on the bench.
At the center of the debate over the characteristics of judges was the meaning of “empathy.” President Obama asserted that he sought judges who could empathize with ordinary people; much debate about this trait ensued, with conservatives charging that empathy was nothing more than a synonym for their much-hated “liberal activism.” Despite the politics, the discussion of empathy revealed important and meaningful differences in how people viewed the process of judging on the U.S. Supreme Court.
Over the weekend, Emily Bazelon made a similar observation in a provocative piece for The New York Times Magazine. In it, she called Alito "the closest thing conservatives have to a feelings justice" and said that, in his opinions, "we get a window onto right-wing empathy on this court."
Bazelon's profile of Alito is worth reading in full as it provides a portrait of how empathy may be used to underscore and affirm personal feelings, rather than transcend them. This was precisely the fear of Republicans on the Senate Judiciary Committee. They believed, in the words of Alabama Senator Jeff Sessions, that empathy "empowered" a judge to "favor" some plaintiffs over others, and that the President's desire to appoint judges with a special capacity for empathy essentially meant, in the words of Utah Senator Orrin Hatch, that he intended "to pick people who will take sides."
Jeff Sessions says 'Obama wants judges with empathy'. Empathy is a bias. A favorable opinion for one side of a lawsuit. If you favor one then you have a bias against the other. It goes against all we've be taught........'
Kyl: But my question is really very simple to you: 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.
During the presidential campaign, candidate Barack Obama said that “the criteria by which I’m going to be selecting my judges” is whether they have “the heart, the empathy,” for certain groups of people.
Those worthy of empathy, according to candidate Obama, include the “young teenage mom,” the “poor,” the “African-American,” the “gay,” the “disabled,” the “old.” What’s wrong with being empathetic to all these groups in particular, or to any group or individual in general?
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