Empathy for the Devil in the Details

Hello, class — Welcome to SCOTUS Summer School of Rock! I am so happy you are here. Although I am sure most of you would rather be at the beach, sailing, fishing, playing cards or doing just about anything else other than sitting around memorizing definitions, I am sure we are going to have a wonderful summer together. And if we all keep with up our book-learnin’ this summer, I am sure we can finagle a few special field trips to the Capitol and catch a little of that Supreme Court confirmation hearing action, just to spice things up a bit.

But first things first.

Today’s opening class will be devoted to one particular word that is absolutely essential if you have any hope at all of surviving in D.C. during the long, hot summer. So, please, click on Dictionary.com or pull out your pocket-sized version of the Third Edition of Roget's 21st Century Thesaurus and we’ll get started.

Today’s first word: Empathy. E-M-P-A-T-H-Y. Got it? Look it up, please. There will be extra points for speed, and I assure you: This WILL be on next week’s quiz.

Empathy: the intellectual identification with or vicarious experiencing of the feelings, thoughts or attitudes of another.

Synonyms: affinity, appreciation, being on same wavelength, being there for someone, communion, community of interests, compassion, comprehension, concord, cottoning to, good vibrations, hitting it off, insight, picking up on, pity, rapport, recognition, responsiveness, soul, sympathy, warmth

Antonyms: apathy, misunderstanding, unfeelingness

I, of course, am having a little pre-summer-confirmation fun with that now-legendary “E-word” heard ’round the world as Republicans on Capitol Hill hunt for any tidbit, factoid, court case, speech, stray thought or anything else that might help them with their little summer community service project of trying to scuttle the Sonia Sotomayor nomination. The patriotic, empathetic key, of course, is to make sure it looks like they are playing fair, without looking like they are trying to scuttle the Sonya Sotomayor nomination.

President Obama’s use of the word “empathy” in describing one of the qualities that he would like to see in a potential Supreme Court nominee has received (and rightfully so) a fair amount of attention to date. But, to steal a curtain-lifting phrase from the annals of both show business and politics, “You ain’t seen nothin’ yet!”

If you happen to have friends and family visiting the Senate side of the Capitol Hill next week, please advise them to keep a firm hand on their children and any small animals they might be toting around. Starting next week we expect Sotomayor and her White House Sherpa to begin the process of visiting virtually every single member of the United States Senate.

Camera crews from all the networks and reporters from just about every journalistic agency on earth will be seen trailing behind as the nominee pops into and out of office after office presenting herself to the senators in the traditional lead-up to this summer’s confirmation hearings.

There, of course, will be plenty to say in the weeks ahead on the Sotomayor nomination, by me, all my fellow Hill Pundits Bloggers, and of course those of you who want to weigh in as well.

So, by way of a public service to get these proceedings off to an educational start, I offer this partial transcript of C-SPAN’s Steve Scully’s recent interview with President Obama on his (then-) upcoming choice for the court. Even though the interview took place before the president officially announced Sotomayor, the “empathy” part of the interview is incredibly enlightening and interesting. Hat tip to C-SPAN and Scully for drawing the president out on the matter. Here it is:

Scully: Mr. President, as we speak to you in the White House Library, a constitutional lawyer, former law professor, as you work through the process for you personally in selecting the Supreme Court nominee, what are you thinking?

President Obama: Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law. Is going to make their decisions based on the law that's in front of them. But as I've said before, I think it's also important that this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live.

I said earlier, that I thought empathy was an important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you. But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.

And a good example of this, the Lilly Ledbetter case that came up a while back, where the justices I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance.

So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work — that's helpful. So, in all these cases what I want is not just ivory tower learning. I want somebody who has the intellectual firepower, but also a little bit of a common touch and has a practical sense of how the world works.

Scully: And that's what empathy is?

President Obama: Well that's what empathy is to me. And I think that that's – those criteria of common sense, practicality, a sense of what ordinary Americans are going through everyday. Putting that in the mix, when the judges are looking at cases before them, it's very important.

Keep in mind that, the Supreme Court by definition only gets the tough cases. And even at the Supreme Court level, probably 95 percent of the cases are going to be determined by some clear statutory language, a strong precedent.

But there is going to be a 5 percent of the cases there, where the language is ambiguous, where the constitutional precedent is not clear. And in those situations you want a judge who has a sense of what's going on in the day-to-day lives of the American people and has some practical experience. And I'm confident that there are people who combine both the intellectual qualities and the qualities of judgment and common sense that will make them a great Supreme Court justice.

(Later in the interview)
Scully: Is there a justice current or former that you look at as a role model, as kind of the characteristics that you want in a Supreme Court justice?

President Obama: Well you know, I mean each justice I think brings their own qualities, and you know, there are some justices who are wonderful writers, even justices I don't agree with, Justice Scalia is a terrific writer, and makes really interesting arguments.

You have people like Judge – Justice O'Connor, who again, I might not have agreed with her on every issue, but you always had a sense that she was taking the law and seeing what the practical applications of the law in this case. She wasn't a grand theoretician, but she ended up having an enormous influence on the law as a whole.

And on the other hand there are Justices like Brennan or Marshall, who really focused on the broader sweep of history and came at a time during the Civil Rights movement, where they recognized the unique role that – the unique role that courts could play in breaking the political logjam that had locked out too many people in the political process.

And so, different times call for different justices, each justice has their own strengths as well as weaknesses. And what I just want to make sure of is that any justices I appoint are people who have not only the academic qualifications or intellectual capacity, but also the heart and the feel for how Americans are struggling in their day-to-day lives.

And also, an appreciation I think for how, even though, we live in new times there are some time tested principles embodied in our constitution that have to be respected.

Scully: Let me follow-up on that, because you could have 2 or 3 more appointments in the next couple of years.

President Obama: Right.

Scully: Is that the imprint that you want on the Supreme Court?

President Obama: I don't want to jump the gun. Obviously, nobody else has announced their retirements, but the criteria that I described, a strong intellectual grasp of the law, an appreciation for the timeless principles of the constitution, and a sense of common sense and compassion and empathy for ordinary Americans, so that everybody is heard. Those are all qualities that I think make for a great Supreme Court justice.

Scully: William Howard Taft served on the court after his presidency, would you have any interest in being on the Supreme Court?

President Obama: You know, I am not sure that I could get through Senate confirmation.