After Justice David Souter retired from the Supreme Court in the spring of 2009, President Obama launched a brief national media freak-out by putting “empathy” at the top of his wish list for his first Supreme Court nominee. Empathy, Obama said, was an “essential ingredient” for arriving at “just decisions and outcomes.”
When he named federal appeals court Judge Sonia Sotomayor to fill Souter’s seat, his “empathy standard” was widely debated and derided by those who saw it as code for every imaginable judicial evil, including bias, sentimentality and, quite possibly, generalized female-ness. Indeed, the opening of Sotomayor’s confirmation hearings saw empathy itself put on trial, with the Judiciary Committee’s ranking Republican, Sen. Jeff Sessions (Ala.), expressly warning that “empathy for one party is always prejudice against another.”
Faced with the charge that she was too biased and emotional to properly impose the rule of law, Sotomayor used the hearings to distance herself from the president’s empathy standard. When asked whether she agreed with Obama’s claim that in some small percentage of cases, “the critical ingredient is supplied by what is in the judge’s heart,” Sotomayor replied with an emphatic no: “Judges can’t rely on what’s in their heart. . . . It’s not the heart that compels conclusions in cases, it’s the law.” The empathy standard was thus laid to rest in July 2009, never again to be invoked by Obama, Sotomayor or anyone else.