Bench Memos

Obama’s Empathy Rule: Alive and Well in the Second Term

I will seek . . . someone who understands justice and isn’t about some abstract legal theory or footnote in a case book . . . I view that quality of empathy of understanding and identifying what people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

— President Barack Obama, May 2009

When announcing criteria for his first nomination to the Supreme Court, President Obama offered his personal litmus test for judicial nominees, now commonly known as the “empathy standard.”

Senators immediately recognized that this standard promotes judges who rely on widely varying personal views to reach subjective, and thus uneven, interpretations of the United States’ laws. Such a standard directly contradicts the traditional American expectation of impartial judges seeking to guarantee equality under the law, independent of their personal preferences.

Widespread criticism of this wrong-headed philosophy on the role of judges forced the president to back down from his initial statements, and he has not reaffirmed his “empathy standard” even once in the four years since his first Supreme Court nomination. In fact, when facing questions during their Senate confirmation hearings, both of the president’s Supreme Court nominees (Elena Kagan and Sonia Sotomayor) publicly disowned the president’s empathy standard.

Yet the record of President Obama’s judicial nominees continues to tell a different story.

Judge Robert Chatigny, Obama’s 2010 nominee to the Second Circuit Court of Appeals, once stated in a speech at an American Constitution Society event that “empathy for individuals involved in a case inevitably comes into play, as it should.” Chatigny was strongly criticized throughout his confirmation hearings for a variety of cases in which his “empathy” for convicted murderers and rapists inspired him to passionately defend these violent criminals as the presiding judge in their trials or sentencing.

The president’s nominee for the Northern District of California, Edward Chen, also faced significant opposition over a variety of positions he held during his career as an ACLU lawyer, including the articulation of his own empathy standard — that the “ethnic and racial background” of judges plays a key role in how they ought to apply the law.

The most recent example of this trend is President Obama’s nominee to the Federal District Court of Oregon, Michael McShane. McShane’s work as a judge in Portland, Ore., raises numerous red flags about whether McShane would exhibit partiality in the federal courtroom, and whether McShane would prioritize empathy over the proper role of a judge. One such example is a case in which McShane, as a sitting judge, drove a convicted drug offender to a treatment facility after personally telling him to “not show up clean.” McShane tried to downplay the possibility that he’d committed an ethical violation, saying he was not actually instructing the man to break the law. “I wasn’t telling him to go get high, but it is an odd conversation to have,” he explained. Ironically, in the same interview, McShane said that, as a judge, “once you step in, you’re committed emotionally, whether you want to be or not.”

McShane’s nomination was reviewed by the Senate Judiciary Committee last month, and is expected to receive a vote before the full Senate in the near future. As with President Obama’s other judicial nominees, Senate Republicans are not expected to filibuster the appointment. However, McShane’s record deserves at least a careful review by any senator who understands that judges must be unbiased and beholden to the laws, rather than their own empathetic views.

The value of “empathy” as the primary criterion for selecting judges must be eradicated, as should the practical application of that value, which usually means emphasizing race, sexual preference, gender, and political affiliation over basic qualifications and standards. So long as this subversive trend continues, President Obama’s judicial nominees should receive a heightened level of scrutiny from senators.

With the possibility of additional Supreme Court nominations in President Obama’s second term, he must square with the Senate and the American people about his view of a judge’s proper role.

— James Christophersen is executive director of Judicial Action Group, and has worked on judicial-nomination projects since 2005.


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