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From time to time my office distributes press releases and written statements on state and national issues, debate in the Senate, and legislation that I am working on. For your convenience, I post these documents on my site for your review.
“Real compassion is found not in the empathy standard but in following the Constitution.”
WASHINGTON—Senator Jeff Sessions (R-AL), Ranking Member on the Senate Judiciary Committee, is delivering closing remarks today on the nomination of Judge Sonia Sotomayor to be an Associate Justice on the Supreme Court. A text of those remarks, as prepared, follows:
When the President nominated Judge Sotomayor to the Supreme Court, I pledged that we would treat her with respect and that our questions would be tough but always fair. I believe that we have lived up to that obligation.
Again, I would like to thank the Chairman and the Members of the Judiciary Committee for their efforts, and I would like to thank Judge Sotomayor for her kind words regarding how this process has been conducted. We have had a robust debate on the Senate floor over these last few days, and we have addressed many important questions and issues.
The debate over Judge Sotomayor’s nomination began with President Obama’s radical new vision for America’s court system. According to the President, all nominees to the federal bench would now have to meet an “empathy standard.” This standard requires judges to reach their most difficult and important decisions through the “depth and breadth of [their] empathy,” and “their broader vision of what America should be.”
This is a stunning ideology. It turns law into politics. The President of the United States is breaking with centuries of American legal tradition, to enter a new era where a judge’s personal feelings about a case are as important as the Constitution itself.
The President’s empathy standard is much more than a rhetorical flourish. It is a dangerous judicial philosophy where judges base their rulings on their social, personal and political views. It is an attempt to sell an old, discredited activist philosophy by marketing it under a new label.
It is this activist philosophy – now under the new guise of empathy – that has led judges to ban the Pledge of Allegiance because it contains the words “Under God,” to interpret the Constitution on the basis of foreign laws, to create new rights for terrorists while robbing American citizens of their own rights to engage in activities like silent prayer.
That philosophy also helps explain why Judge Sotomayor’s panel of federal judges allowed the city of New Haven to strip eighteen firefighters of their eligibility for promotion on the basis of their race. It explains why judges have interpreted the Second Amendment to permit cities and states to ban firearms, despite the Constitution’s clear language: “the right of the people to keep and bear Arms, shall not be infringed.” And it explains why judges have allowed governments to seize private property for commercial development, despite the Constitution’s guarantee that private property may not be taken except for “public use.”
The empathy standard may sound nice, but in reality it is quite cruel. It is, in truth, a bias standard. The power to rule on empathy is the power to rule on prejudice. And the power to deny the rights of some is the power to deny the rights of any, or all. A judge embraces empathy at the expense of objectivity – and equality and fairness.
Eighteen firefighters in New Haven worked, studied, and sacrificed to pass the city’s promotion exam. But when the results didn’t fit a certain racial quota, city leaders unceremoniously scrapped the results. The firefighters put their faith in the system and the system let them down. So they took their case to court. But Judge Sotomayor summarily dismissed their case in a one-paragraph order that didn’t even consider their civil rights claims.
But the Judge Sotomayor who testified before the Judiciary Committee did not effectively explain her ruling to deny these firefighters their just day in court. She also did her best to distance herself from the activist philosophy she has so long championed. But it too was an unconvincing effort.
She failed to offer a credible explanation for her critically important rulings that would eviscerate gun rights and property rights.
She failed to offer a credible explanation of her policy role in an advocacy group that took extreme positions when pursuing racial quotas, advocating that the constitution requires that the government fund abortions, and opposing reinstatement of the death penalty.
Her effort to rebrand her judicial approach stretched the limits of credulity. As one editorial page opined, her testimony was “at times uncomfortably close to disingenuous.”
Nonetheless, I believe we have had a deeply valuable public discussion. By the end of the hearing not only Republicans, not only Democrats, but the nominee herself ended up rejecting the very empathy standard the President used when selecting her.
This process reflected a broad public consensus that judges should be impartial, restrained, and faithfully tethered to the law and the Constitution. It will now be harder to nominate activist judges.
This is not a question of left versus right or Democrat versus Republican. This is a question of the true role of a judge versus the false role of a judge. It is a question of whether a judge follows the law as written or as they wish it to be. It is a question of whether we live up to our great legal heritage or whether it is abandoned.
Empathy-based rulings, no matter how well-intentioned, do not help society but imperil the legal system that is so essential to our freedoms and so fundamental to our way of life.
We need judges who uphold the rights of all, not just some – whether they are New Haven firefighters, law-abiding gun-owners, or any American looking for their fair day in court. We need judges who put the Constitution before politics, and the right legal outcome before their desired social outcome. We need judges who understand that if they truly care about society, and want it to be strong and healthy, then they must help ensure that our legal system is fair, objective and firmly rooted in the Constitution.
Our 30th President, Calvin Coolidge, said of the Constitution that “[n]o other document devised by the hand of man ever brought so much progress and happiness to humanity. The good it has wrought can never be measured.”
And he was right.
That document has given us blessings no people, of any country, has ever known. Which is why real compassion is found not in the empathy standard but in following the Constitution.
Judge Sotomayor, however, has embraced the opposite view. For many years before her hearings, she has bluntly advocated a judicial philosophy where judges ground their decisions not in the objective rule of the law, but in the subjective realm of personal “opinions, sympathies and prejudices.”
A Supreme Court Justice wields enormous power over every man, woman and child in this country. It is the primary guardian of our magnificent legal system. Because I believe Judge Sotomayor' philosophy of law and her approach to judging fail to demonstrate a firm commitment to those ideals, I must withhold my consent.
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