Video: Sessions on the danger of the empathy standard

Sonia Sotomayor won confirmation yesterday on a 68-31 vote, but the Republicans got what they wanted out of the fight.  Jeff Sessions talks about the dangers of the “empathy standard,” the measure by which Barack Obama explicitly stated he would select nominees to the federal bench — and the standard which Sotomayor herself rejected in her confirmation hearings.  It’s a lengthy statement but well worth the time, but skip to the second half to get the real red meat in Session’s finale:

Empathy-based rulings, no matter how well-intentioned, do not help society but imperil the legal system that is so essential to our freedoms and so fundamental to our way of life.

We need judges who uphold the rights of all, not just some – whether they are New Haven firefighters, law-abiding gun-owners, or any American looking for their fair day in court. We need judges who put the Constitution before politics, and the right legal outcome before their desired social outcome. We need judges who understand that if they truly care about society, and want it to be strong and healthy, then they must help ensure that our legal system is fair, objective and firmly rooted in the Constitution.

Our 30th President, Calvin Coolidge, said of the Constitution that “[n]o other document devised by the hand of man ever brought so much progress and happiness to humanity. The good it has wrought can never be measured.”

And he was right.

That document has given us blessings no people, of any country, has ever known. Which is why real compassion is found not in the empathy standard but in following the Constitution.

Judge Sotomayor, however, has embraced the opposite view. For many years before her hearings, she has bluntly advocated a judicial philosophy where judges ground their decisions not in the objective rule of the law, but in the subjective realm of personal “opinions, sympathies and prejudices.”

A Supreme Court Justice wields enormous power over every man, woman and child in this country. It is the primary guardian of our magnificent legal system. Because I believe Judge Sotomayor’ philosophy of law and her approach to judging fail to demonstrate a firm commitment to those ideals, I must withhold my consent.

Sessions says that the hard debate over Sotomayor’s nomination will make it more difficult to appoint activist judges to the bench. I’m not sure that’s true in the short run. Sotomayor got confirmed rather easily, thanks to a supermajority of Democrats in the Senate and a handful of Republicans who believe (rightly) that presidents should get the benefit of the doubt in confirming their judicial appointments. However, Republicans did achieve two key goals in this process: they showed that Sotomayor was nothing special as a jurist and that Obama has some radical ideas on jurisprudence in America. Both of those will help Republicans win back some seats in the Senate in 2010, which will indeed make it more difficult for Obama to get radicals onto the federal bench.

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