1994—Exasperated by President Clinton’s nomination of Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court, Ninth Circuit judge Stephen Reinhardt publishes a “personal appeal” to Breyer in the Los Angeles Times. Reinhardt urges Breyer to “re-examine your judicial philosophy” and instead to “carry on the work of the court’s great progressive thinkers.” You can remain the “cold, purely intellectual and wholly technical” jurist that you have been, Reinhardt tells Breyer, “or you can become what the President said he was looking for—a justice who is compassionate, who has a big heart.”
2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard.
2021—In an adventuresome frolic (in Arevalo-Quintero v. Garland), a Fourth Circuit panel takes a simple statutory provision—namely, an immigration judge “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”—and extrapolates from it an elaborate duty on the part of an immigration judge to “fully develop the record” in all sorts of ways. Among other things, the panel rules that an immigration judge must “probe into, inquire of, and elicit all facts relevant to a respondent’s claims” and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”