In Search of an Empathetic Nominee

6 05 2009

So it seems as if President Obama will not name a replacement for Justice David Souter this week says the WaPo. But the announcement of a nominee with “real world experience ” does seem to be eminent.  In addition to Second Circuit Appeals Court Judge Sonia Sotomayor, the other front-runners named in this morning’s Washington Post article include:

Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit; Elena Kagan, Obama’s solicitor general and the former dean of Harvard Law School; and Michigan Gov. Jennifer M. Granholm (D), a Harvard Law graduate whose background running a large state dealing with severe hardship may qualify as the experience Obama is seeking.

None of these names are new. But most of the reports I have seen usually included the Canadian born Granholm in the extended list of potential nominees, not on the short list.

It also seems as if the attacks on Sotomayor are starting to worry some in the White House.  According to the WaPo, one official involved in the White House  seems to be concerned that the native Bronxite is being portrayed as someone who “doesn’t play well with others.”

Sigh.

There needs to be an organized effort to aggressively push back against the noise machine, though some of that has already begun.

Meanwhile, in her piece today Ruth Marcus of the WaPo attempts to put some meant on the bones regarding Obama’s seemingly vague empathy standard. To Marcus, Obama invoked the empathy standard not to be  the new age sensitive guy, but to broaden the discussion on the role of judges beyond the trite umpire analogy that Chief Justice Roberts easily popularized during his confirmation process in 2005.

If that were all judges did Marcus contends, then “we could program powerful computers to fulfill the judicial function.” Marcus also noted that empathy and the lackthereof has already revealed itself in some of the courts more recent rulings.

When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws “seek to control a personal relationship.” You got the sense that Kennedy actually knew people in such relationships.

And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter’s pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against allegations of discrimination that allegedly occurred years earlier.

That’s real talk.

Some time ago, Jefferey Toobin of the New Yorker recalled his favorite Souter opinion where he dissented in a case that involved a man named Kieth Bowles, who was sentenced to 15 years to life for murder in Ohio. Bowles wanted to file an appeal in federal court, but the judge mistakenly provided the wrong date for the filing deadline.

In a callous  5 to 4 ruling with Justice Clarence Thomas writing for the majority, the court said,  “Tough luck, pal. The law’s the law. Bowles missed the deadline, which he might consider as he potentially spends the rest of his life in prison.”

For his part, Justice Souter called attention to the lack of compassion shown by his fellow justices in his dissent. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.”

I wonder if that is empathy or just plain common sense at work.

Update: Media Matters has put together a solid document countering conservative talking points on all things judicial nominations, including Sotomayor.

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