This paper was initially written for the course “Congress, the Constitution, and the Supreme Court” at University of Pennsylvania Law School while the author was a visiting student at Penn.
This paper addresses President Obama’s standard of “empathy” as a qualification for potential nominees to the Supreme Court. The paper seeks to germinate answers to questions surrounding the meaning and purpose of empathy as a quality for Supreme Court Justices and ways empathy might be effectively promoted moving forward. Working within the narrow but recent line of scholarship on empathy this paper supports the position that empathy is both a desirable and necessary quality for nominees to the Court. However, the paper and research also suggests that empathy should not be the only major defining quality considered by the president in nominations to the Court.
The paper first establishes that the Obama administration’s conception of empathy is clear, reasonable, and workable, but reviews the political considerations that seem to have stymied overtly embracing empathy as a consideration. The paper then shows that the role empathy might play for a particular justice once on the Court is uncertain, suggesting that perhaps empathy should not be the leading consideration advanced by the president in choosing a nominee. Overall, this paper reveals the arguments for why empathy is a meaningful and admirable quality and should remain a consideration. The paper also shows that for both policy and pragmatic political reasons empathy should probably not occupy the central public role initially insinuated by President Obama in the nomination of Sonia Sotomayor. In order to structure the argument the paper culls the nomination and confirmation records and testimonies of four current Justices purportedly nominated and confirmed to the Court because of the unique perspective they would bring as Justices: Clarence Thomas, appointed by George H. W. Bush; Ruth Bader Ginsburg, appointed by Bill Clinton; and Sonia Sotomayor and Elena Kagan, both nominees of Barack Obama and by default arguably symbolic of his empathy standard.
This paper was initially written for the course “Congress, the Constitution, and the Supreme Court” at University of Pennsylvania Law School while the author was a visiting student at Penn. The course was taught by former U.S. Senator Arlen Specter and former General Counsel to Senator Specter, Matthew Wiener. The views in the paper are the author’s own.
Date of Authorship for this Version
Empathy in law, Judicial nomination process
Guard, Louis H., "“In the Judge’s Heart:” Rethinking the Role of Empathy in the Supreme Court Nomination and Confirmation Process" (2012). Cornell Law School Graduate Student Papers. Paper 28.