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Like Sotomayor, Kagan distances self from one of Obama's criteria

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Wednesday, June 30, 2010

So much for the empathy standard. For the second straight set of Supreme Court confirmation hearings, a nominee of President Obama's has distanced herself from one of the original criteria that Obama cited in selecting lifetime appointees to the court.

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Elena Kagan hearing, Tuesday

Sen. Jon Kyl (R-Ariz.):

"[The president] 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:

"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."

Sonia Sotomayor hearing, July 14, 2009

Kyl:

"[The president] 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."

-- Paul Kane


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