Mr. McCONNELL. Madam President, this morning I would like to turn my attention to the nomination of Judge Sonia Sotomayor to the Supreme Court and more specifically to the so-called empathy standard that President Obama employed in selecting her for the highest Court in the land.
The President has said repeatedly that his criterion for Federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for President, and again as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. Based on a review of Judge Sotomayor's record, it is becoming clear to many that this is a trait he has found in this particular nominee.
Judge Sotomayor's writings offer a window into what she believes having empathy for certain groups means when it comes to judging, and I believe once Americans come to appreciate the real-world consequences of this view, they will find the empathy standard extremely troubling as a criterion for selecting men and women for the Federal bench.
A review of Judge Sotomayor's writings and rulings illustrates the point. Judge Sotomayor's 2002 article in the Berkeley La Raza Law Journal has received a good deal of attention already for her troubling assertion that her gender and ethnicity would enable her to reach a better result than a man of different ethnicity. Her advocates say her assertion was inartful, that it was taken out of context. We have since learned, however, that she has repeatedly made this or similar assertions.
Other comments Judge Sotomayor made in the same Law Review article underscore rather than alleviate concerns with this particular approach to judging. She questioned the principle that judges should be neutral, and she said the principle of impartiality is a mere aspiration that she is skeptical judges can achieve in all or even in most cases--or even in most cases. I find it extremely troubling that Judge Sotomayor would question whether judges have the capacity to be neutral ``even in most cases.''
There is more. A few years after the publication of this particular Law Review article, Judge Sotomayor said the ``Court of Appeals is where policy is made.'' Some might excuse this comment as an off-the-cuff remark. Yet it is also arguable that it reflects a deeply held view about the role of a judge--a view I believe most Americans would find very worrisome.
I would like to talk today about one of Judge Sotomayor's cases that the Supreme Court is currently reviewing. In looking at how she handled it, I am concerned that some of her own personal preferences and beliefs about policy may have influenced her decision.
For more than a decade, Judge Sotomayor was a leader in the Puerto Rican Legal Defense and Education Fund. In this capacity, she was an advocate for many causes, such as eliminating the death penalty. She was responsible for monitoring all litigation the group filed and was described as an ardent supporter of its legal efforts. It has been reported that her involvement in these projects stood out and that she frequently met with the legal staff to review the status of cases.
One of the group's most important projects was filing lawsuits against the city of New York based on its use of civil service exams. Judge Sotomayor, in fact, has been credited with helping develop the group's policy of challenging those exams.
In one of these cases, the group sued the New York City Police Department on the grounds that its test for promotion discriminated against certain groups. The suit alleged that too many Caucasian officers were doing well on the exam and not enough Hispanic and African-American officers were performing as well. The city settled a lawsuit by promoting some African Americans and Hispanics who had not passed the test, while passing over some White officers who had.
Some of these White officers turned around and sued the city. They alleged that even though they performed well on the exam, the city discriminated against them based on race under the settlement agreement and refused to promote them because of quotas. Their case reached the Supreme Court with the High Court splitting 4 to 4, which allowed the settlement to stand.
More recently, another group of public safety officers made a similar claim. A group of mostly White New Haven, CT, firefighters performed well on a standardized test which denied promotions for lieutenant and for captain.
Other racial and ethnic groups passed the test, too, but their scores were not as high as this group of mostly White firefighters. So under this standardized test, individuals from these other groups would not have been promoted. To avoid this result, the city threw out the test and announced that no one who took it would be eligible for promotion, regardless of how well they performed. The firefighters who scored highly sued the city under Federal law on the grounds of employment discrimination. The trial court ruled against them on summary judgment. When their case reached the Second Circuit, Judge Sotomayor sat on the panel that decided it.
It was, and is, a major case. As I mentioned, the Supreme Court has taken that case, and its decision is expected soon. The Second Circuit recognized it was a major case too. Amicus briefs were submitted. The court allotted extra time for oral argument. But unlike the trial judge who rendered a 48-page opinion, Judge Sotomayor's panel dismissed the firefighters' appeal in just a few sentences. So not only did Judge Sotomayor's panel dismiss the firefighters' claims, thereby depriving them of a trial on the merits, it didn't even explain why they shouldn't have their day in court on their very significant claims.
I don't believe a judge should rule based on empathy, personal preferences, or political beliefs, but if any case cried out for empathy--if any case cried out for empathy--it would be this one. The plaintiff in that case, Frank Ricci, has dyslexia. As a result, he had to study extra hard for the test--up to 13 hours each day. To do so, he had to give up his second job, while at the same time spending $1,000 to buy textbooks and to pay someone to record those textbooks on tape so he could overcome his disability. His hard work paid off. Of 77 applicants for 8 slots, he had the sixth best score. But despite his hard work and high performance, the city deprived him of a promotion he had clearly earned.
Is this what the President means by ``empathy''--where he says he wants judges to empathize with certain groups but, implicitly, not with others? If so, what if you are not in one of those groups? What if you are Frank Ricci?
This is not a partisan issue. It is not just conservatives or Republicans who have criticized Judge Sotomayor's handling of the Ricci case. Self-described Democrats and political independents have done so as well.
President Clinton's appointee to the Second Circuit and Judge Sotomayor's colleague, Jose Cabranes, has criticized the handling of the case. He wrote a stinging dissent, terming the handling of the case ``perfunctory'' and saying that the way her panel handled the case did a disservice to the weighty issues involved.
Washington Post columnist Richard Cohen was similarly offended by the way the matter was handled. Last month, before the President made his nomination, Mr. Cohen concluded his piece on the subject as follows:
Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of his race. Obama's Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There's a litmus test for you.
Legal journalist Stuart Taylor, with the National Journal, has been highly critical of how the case was handled, calling it peculiar.
Even the Obama Justice Department has weighed in. It filed a brief in the Supreme Court arguing that Judge Sotomayor's panel was wrong to simply dismiss the case.
So it is an admirable quality to be a zealous advocate for your clients and the causes in which you believe. But judges are supposed to be passionate advocates for the evenhanded reading and fair application of the law, not their own policies and preferences. In reviewing the Ricci case, I am concerned Judge Sotomayor may have lost sight of that.
As we consider this nomination, I will continue to examine her record to see if personal or political views have influenced her judgment.
I yield the floor.
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