Posted by Orin Kerr:
Obama Elaborates on "Empathy," What He Wants in a Supreme Court Nominee:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243188972
The transcript of his Friday C-SPAN interview is [1]here, and this is
the part about the Supreme Court, continued below the jump:
STEVE SCULLY, POLITICAL EDITOR, C-SPAN: 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?
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: 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.
And you know, I said earlier, that I thought empathy wasn't
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
justice has 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 fire power, but
also a little bit of a common touch and has a practical sense of
how the world works.
[2]
To read the rest of the interview, click here.
SCULLY: And that's what empathy is?
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.
SCULLY: Is it safe to say that an announcement in the next week or 2
with hearings in July?
OBAMA: Well, I think it's safe to say that we're going to have an
announcement soon. And my hope is, is that we can have hearings in
July so that we end up before Congress breaks for the summer � have
somebody in place.
One of the things I would prefer not to see happen is that these
confirmation hearings drag on and somebody has to hit the ground
running and then take their seat in October without having the time to
wrap their mind around the fact that they are going to be a Supreme
Court Justice. I'd like to given them a little bit of lead time so
that they can get prepared.
SCULLY: Are you worried about that?
OBAMA: No I am not worried. I think if you look at how this has worked
in the past. Justice Roberts, Justice Alito, it took them
approximately 70 days to get confirmed from the time that they were
announced. And yes, I think that's a fair timeframe for us to work
with as well.
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?
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.
OBAMA: Right.
SCULLY: Is that the imprint that you want on the Supreme Court?
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?
OBAMA: You know, I am not sure that I could get through Senate
confirmation.
Notably, Obama seems to use "empathy" in different ways here, and in
ways that appear (to me at least) to be somewhat different than his
earlier uses. At various points in the interview, Obama suggests that
empathy means just having an accurate understanding of the world
(which I gather no one would disagree is desirable). At other times,
he seems to suggest it means being a pragmatist -- that is,
interpreting the law to avoid bizarre results. Last I checked, no one
believes that misunderstanding the world is a good thing, and even
Justices like Scalia have a strong pragmatic streak. If that's all
Obama means by "empathy," then I'm not entirely sure what kinds of
Justices he thinks don't have that quality. Maybe the idea is someone
who is a purposivist rather than a textualist when it comes to
statutory interpretation? I'm not sure.
References
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2. file://localhost/var/www/powerblogs/volokh/posts/1243188972.html
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