Kagan sidesteps empathy question, says 'it's law all the way down'

By Paul Kane
Washington Post Staff Writer
Tuesday, June 29, 2010; 4:48 PM

So much for the empathy standard.

For the second straight Supreme Court confirmation hearing, President Obama's nominee has distanced herself from one of the original criteria that Obama cited in selecting lifetime appointees to the high court -- using very similar language.

During her confirmation hearings last July, Sonia Sotomayor said, "judges can't rely on what's in their heart" and should only "apply the law." On Tuesday, Solicitor General Elena Kagan said, "it's the law all the way down," not empathy for the litigants before a judge.

In May 2009, after Justice David Souter announced his plan to retire and gave Obama his first Supreme Court opening, the president said that he wanted a judge who could empathize with the real-world impact a ruling would have. Conservatives reject this standard as a liberal activist approach in which rulings reflect preferred outcomes.

In both the Sotomayor and Kagan hearings, Sen. Jon Kyl (R-Ariz.) drew out the responses from the nominees that distanced them from Obama's words, after asking each the same question.

Sotomayor's rejection of the empathy standard angered some liberal scholars, but it did win her a fairly smooth confirmation process. She collected 68 votes, including nine Republicans. Kagan is taking the same approach.

Here's the breakdown of the two Kyl exchanges:

Kagan hearing, June 29, 2010

Kyl: Let me start by asking you the standard for judges in approaching cases that we talked about, starting with the president's idea. I'll remind you. He's used a couple of different analogies -- one was to a 26-mile marathon -- and said that in hard cases, adherence to precedent and rules of construction and interpretation will only get you through the first 25 miles. . . . He says the critical ingredient in those cases is supplied by what is in the judge's heart, or the depth and breadth of a judge's empathy. My first question is, do you agree with him that the law only takes you the first 25 miles of the marathon, and that the last mile has to be decided by what's in the judge's heart?

Kagan: Senator Kyl, I think it's law all the way down. It's -- when a case comes before the court, parties come before the court, the question is not do you like this party or do you like that party, do you favor this cause or do you favor that cause. The question is -- and this is true of constitutional law, it's true of statutory law -- the question is what the law requires. Now, there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent -- how they apply to a case. But it's law all the way down, regardless.

Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?

Kagan: Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically. I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. . . . But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.

Sotomayor hearing, July 14, 2009

Kyl: Let me ask you about what the president said -- and I talked about in my opening statement whether you agree with him. He used two different analogies. He talked once about the first 25 miles of a 26-mile marathon, and then he also said in 95 percent of the cases the law will give you the answer and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of a marathon and that that last mile has to be decided by what's in the judge's heart?

Sotomayor: No, sir. That's -- I don't -- wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law.

Kyl: And --

Sotomayor: The judge applies the law to the facts before that judge.

Kyl: Appreciate that.

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