Thumbs-Down On Obama’s ‘Empathy’ Standard

June 15, 2009

Thumbs-Down On Obama’s ‘Empathy’ Standard

By RAGHAVAN MAYUR | Investors Business Daily | 15 June 2009

Most Americans reject the broader criteria that judicial activists think can be brought to bear on Supreme Court decisions, including the “empathy” standard that President Obama has said is important in particularly difficult cases, a new IBD/TIPP Poll shows.

Three in five (59%) believe a high court justice should consider only the Constitution, applicable laws and precedents rather than all of these plus his or her own life experiences and views. Only one in three (32%) say justices must consider their life experiences and personal views.

By party, 42% of Democrats, 81% of Republicans and 66% of independents favor exclusive reliance on law.

By ideology, 71% of conservatives, 57% of moderates and 39% of liberals favor this approach.

On the empathy factor, a majority (51%) disagree with a statement paraphrasing remarks Obama made in 2005: “When it comes to the Supreme Court justices, law and precedent should determine rulings in 95% of the cases, but in the really hard and important cases, justices should go with their heart.”

Only 23% agree with the statement. Most independent voters (58%), conservatives (61%) and moderates (50%) disagree with it. Democrats (31%) and liberals (35%) are the leading supporters of the concept that justices should go with their heart.

Obama’s position on “empathy” dates to September 2005, when as a senator considering the nomination of now-Chief Justice John Roberts, he said:

“What matters on the Supreme Court is those 5% of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

By nominating Judge Sonia Sotomayor, one can reasonably conclude that Obama is applying his “empathy” standard.

In a CNN report, for example, an administration official concurred that Obama “was looking for someone with a balance of skills: very, very smart; independent thinker; highly regarded for integrity and commitment to the law. He found all of those things with (Sotomayor), including his goal of selecting someone with the empathy factor — real-world, practical experience and understanding of how the law affects real people.”

Some commentators, such as Karl Rove, former strategist for President George W. Bush, believe “empathy” is the latest code word for liberal activism — “for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.”

The dictionary defines judicial activism as “the practice in the judiciary of protecting or expanding individual rights through decisions that depart from established precedent or are independent of, or in opposition to, supposed constitutional or legislative intent.”

Sotomayor is believed by some to have tipped her activist hand when she once said the U.S. Court of Appeals on which she sits “is where policy is made.”

In summary, it’s hard to resist the temptation to conclude that the “empathy standard” is indeed an extension of judicial activism and that by rejecting it, Americans also reject judicial activism.

The IBD/TIPP Poll also probed how Americans view the president as a result of nominating Sotomayor. Seventy percent said their opinion of Obama did not change one way or the other.

One in six (16%) felt “more favorable” toward him and 13% “less favorable,” for a net advantage of 3 percentage points. The advantage with independent voters is negative 7 points (8% more favorable, 15% less favorable).

The net advantage Obama gained among Democrats is 26 points, among liberals 29 points, among women 4 points and among Hispanics 24 points.

Two-thirds say their view of Republicans has not changed in the wake of the Sotomayor nomination.

But 22% see them in a less-favorable light vs. just 9% who view them more favorably.

Mayur is president of TechnoMetrica Market Intelligence, IBD’s polling partner.

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