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Battle Heats Up Over Obama Supreme Court Pick

Friday, 22 May 2009 01:45 PM

By David A. Patten

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President Barack Obama's much-debated "empathy" standard for Supreme Court justices is seriously out of touch with what voters actually want, new polling data indicate.

A survey released Thursday by Americans United for Life shows that an overwhelming 87 percent of respondents prefer that "U.S. senators look for a man or woman who will interpret the law as it is written and not take into account his or her personal viewpoints and experiences." And 72 percent said they "strongly agree" with that statement.

The importance of interpreting the law as written -- rather relying on experiences, opinions, or feelings -- lies at the heart of the gathering confirmation battle over "empathy" and judicial activism.

Multiple polls indicate a clear majority of voters reject Obama's "empathy" standard, which was perhaps best articulated in a 200y speech he gave before Planned Parenthood.

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," he said. "The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Shortly after Justice David H. Souter announced his retirement, Obama reiterated that he wanted a Justice who could identify "with people's hopes and struggles."

Obama's emphasis on circumstances and empathy has drawn a sharp response from conservatives worried Obama's nominee may view the law as just one of several factors to consider when making a ruling.

According to The Wall Street Journal, Obama's top political adviser, David Axelrod, recently said that a justice must interpret the Constitution in light of current events.

"Fidelity to the Constitution is paramount," Axelrod said, "but as with any document that was written no matter how brilliantly centuries ago, it couldn't possibly have anticipated all the questions that would be asked in the 21st century."

This echoes Obama's statement during the campaign that the Constitution "is not a static but rather a living document, and must be read in the context of an ever-changing world."

While Obama has offered well-mannered, moderate rhetoric in discussing his much-awaited choice, his votes on prior nominates appear markedly less centrist. He was one of 25 Democratic senators who tried to block the confirmation of Supreme Court justice Samuel Alito.

Obama also opposed the nomination of Chief Justice John Roberts. He focused not on Roberts' education, judicial credentials, or understanding of the law. Rather, Obama said Roberts fell short because difficult cases could be adjudicated only "on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

Appearing on ABC's This Week, Sen. Orrin Hatch, R-Utah, appeared nonplussed by Obama's emphasis on "empathy."

"What does [empathy] mean?" Hatch asked, adding: "Usually, that's a code word for an activist judge."

According to Webster's, "empathy" derives from the Greek word "empatheia," which means "passion." Generally defined as being sensitive to, or even experiencing, the feelings of others, empathy implies the presence of emotions based on shared life experiences.

Or as Obama put it, he wants a judge "who understands that justice isn't about some abstract legal theory or footnote in a case."

Hatch pointed out, however, that a judge is expected to be dispassionate and objective, applying the law equally, regardless of the life circumstances of those involved.

Other Republicans have voiced similar concerns.

"I may have empathy for … the little guy in a fight with a big corporation," former GOP Chairman Ed Gillespie told NBC's "Meet the Press," "but the law may not be on his side."

Research shows voters side with judges who apply the law, rather than invent it.

"People have a very limited tolerance for how much of the Justice, himself or herself, becomes part of the opinion," says Kelleyanne Conway, president and CEO of The Polling Company Inc., which conducted the AUL survey. "[Judges] are there because of their credentials… because of their impeccable professional pedigrees and experience that would befit them to be one of the nine highest jurists in our nation… But their credentials are not in the view of the American public based on their personal viewpoints and experiences."

On Election night, for example, The Polling Company asked 800 voters to choose between two divergent approaches to Supreme Court decisions. One was the Obama empathy standard. The other was that judges should look "at each individual equally … regardless of an individual's background, or cultural or economic circumstances."

Fifty-four percent of respondents said they "totally agreed" the latter standard, compared with 41 percent who agreed with the "empathy" standard favored by Obama. It should be noted the president has also stated that integrity, intelligence, and respect for the law and the Constitution are important considerations as well.

Earlier this month, CNN released the results of an Opinion Research Corporation poll of 1,010 American adults that showed 35 percent wanted a Supreme Court justice who is conservative. Conservative justices generally have a non-activist approach to interpreting the Constitution. Twenty-seven percent wanted a liberal justice, and 37 percent preferred a moderate.

On Thursday, Dr. Chamaine Yoest, president of the pro-life nonprofit organization Americans United for Life, sent a letter to U.S. senators advising them "new polling data reveal that Americans want Justices who disavow politics and who will uphold the Constitution and the rule of law as written, including on issues involving abortion."

The proposed Freedom of Choice Act would prohibit state and local restrictions on abortion. The landmark 1973 Roe v. Wade decision recognizes as a constitutionally protected right to abortion. It also permits states to regulate abortion.

Other findings of the AUL/Polling Company:

  • Voters do not want the nomination to be determined by gender. While 21 percent want a female judge, 71 percent said gender does not matter.

  • By 52 percent to 34 percent, respondents say states rather than the federal government should regulate abortion.

  • Only 24 percent say they would support a Supreme Court nominee who favored legalizing abortions in the last three months of pregnancy – so-called "partial-birth abortions."

  • Seventy-one percent of those surveyed would object to a Supreme Court nominee who favors using tax dollars to pay for U.S. abortions.

  • Eighty-nine percent of Americans oppose using tax dollars to pay for abortions in other countries – a practice that Obama favors and recently reinstituted.

    The AUL survey has a margin of error of plus or minus 3.5 percent. It was based on calls made to landline telephones from May 17 to 18.

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