Published May 01, 2009
WASHINGTON -- How does President Obama spell "empathy"? S-C-O-T-U-S.
That's insider lingo for the Supreme Court of the United States, and with an impending vacancy on the high court, people on both ends of the political spectrum have begun reading into Obama's views on the subject.
The Supreme Cout it was the topic of the day Friday when Obama surprised the White House press corps by interrupting Press Secretary Robert Gibbs' briefing with word he'd just spoken with Justice David Souter about his plans to retire at the end of the court's term in June.
White House Counsel Greg Craig and Chief of Staff Rahm Emanuel stood to Obama's right beaming as the president described what he would be looking for in Souter's successor. It was the standard-issue list of qualifications every chief executive presents: legal experience or extensive legal training, spotless ethical record and devotion to the rule of law.
And as he did during the campaign, Obama added this qualification: empathy.
"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," Obama said. "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."
During the campaign, the president cited Brown v. Board of Education as an example where justices used empathy to right a legal wrong. On Friday, Press Secretary Robert Gibbs pointed to the Lilly Ledbetter case as one where the Supreme Court failed to rule empathetically.
"Somebody like Lilly Ledbetter, who -- keep in mind what the Supreme Court determined, that she missed her window to bring a grievance about fair pay because she would have had to have done so -- I forget the exact number of days, 120 or 180 days," Gibbs said. "Well, surprisingly, when one discriminates against your pay, they don't normally give you a 120- to 180-day heads-up that you're being paid markedly less than your male counterparts are for the duration of your activities. So I think having a justice that understands the ramifications of what each of those means is important and something that the president believes is important."
The Democratically controlled Congress passed legislation to extend the right of plaintiffs like Ledbetter to sue over alleged pay discrimination. Obama signed the bill on Jan. 29, making it the first law of his presidency.
Conservative judicial scholars and theorists have long viewed Brown v. Board of Education as an example where the desired outcome, overturning the "Separate but Equal" precedent in public education, overwhelmed the underlying facts of the case. In the Ledbetter case, the facts show Ledbetter did not, in fact, file her pay discrimination case within the permissible time period.
The high court, in ruling against Ledbetter's claim, upheld an appeals court ruling that continued a long-line of judicial precedent holding that pay discrimination cases must be filed in a timely manner to guarantee a fair trail. Ledbetter sued over past pay discrimination and by the time her case made it to trial, the supervisor in charge of that decision -- the person from whom intent could be determined -- had already died.
White House allies back this approach to judicial outcomes.
"I couldn't think of two better examples than Brown v. The Board of Education which is transformational and the Lilly Ledbetter decision, which I think in really very clear terms brought home to America the impact that the law and the Constitution have on just average Americans," said Marge Baker of People for the American Way.
But conservatives, who are likely to line up against any "empathetic" Obama nominee for the Souter seat, vehemently disagree.
"President Obama has referred to this nice word empathy," says Wendy Long, legal counsel to the Judicial Confirmation Network. Long clerked for Justice Clarence Thomas, whom Obama has described as one of the kinds of judges he opposes because of their lack of judicial training and lack of empathy.
"(Obama) thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law."
The confirmation battle over Obama's replacement for Souter may or may not turn into a battle royale. But it certainly will dissect the constitutional and increasingly political issue of whether a high court justice should take his or her cues from the Constitution and legislative bodies -- the conservative view -- or take those matters into account while also assessing the deeper needs of society -- the liberal view.
Here is how candidate Obama described that view at a rally in Westerville, Ohio, on March 2, 2008:
"I want my justice to understand that part of the role of the court is to look out for the people who don't have political power," Obama said. "The people who are on the outside. The people who aren't represented. The people who don't have a lot of money; who don't have connections. That's the role of the court."
In the end, Obama is likely to prevail. He has the votes in the Senate, after all, and his allies say he won this battle last November.
"The core constitutional values of justice, equality and equal opportunity for all and I think that was the mandate for this election and I think that's what the president is going to do," Baker said.
That doesn't mean conservatives won't complain and won't challenge this "activist" view of the court.
"The best way to have empathy for people and the best way to have empathy for our Constitution is to appoint judges who will rule based on the law and to have empathy, if you will, for the law only and to rule based on the law," Long says. "That's why Lady Justice is depicted as blind-folded. Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."