Post Politics: 'Empathy,' Sotomayor Confirmation Preview, More

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Ben Pershing
Washington Post Staff Writer
Thursday, May 28, 2009; 11:00 AM

Discuss the latest news about the Obama administration and the world of politics with Ben Pershing, who writes the daily Rundown for The Post's Political Browser. Pershing was online May 28 at 11 a.m. ET to take your questions.


Ben Pershing: Happy Thursday, all. It's Day 3 of Sonia Sotomayor's Supreme Court candidacy and so far, she looks to be on a path toward confirmation. Of course, politics is full of surprises, so maybe this will get more interesting. We've also got GM news and ongoing trouble in Pakistan and North Korea. Let's chat about all of it.


Boston, Mass.: Whether closing Guantanamo actually makes us safer or more vulnerable, does Obama have and want to spend political capital to see it through especially with so many other items on his agenda to push through? Doesn't he need to push the "Bush wanted to close it too" line aggressively or face a very tough issue in the next presidential election?

Ben Pershing: Good question. You can definitely make the case that it might have been smarter politically -- or at least easier -- for Obama if he hadn't vowed to close Guantanamo.

Ben Pershing: But he said he's do it, so now it seems he really has to follow through. It would have been better for him, as John McCain has argued, to have a plan for what to do with the prisoners before declaring his intentions.

_______________________ Slate's Dahlia Lithwick -- The Rational Hysterics: Republicans won't beat Sonia Sotomayor by attacking her as too darn human.


Watertown, Mass.: EMPATHY: the capacity for participation in another's feelings or ideas. "I'm against it and so should those aspiring to the high court." Is that really the stance of the U.S. Republican Party? Are they serious? Can you actually debate the idea that human beings should have empathy?

Ben Pershing: Dahlia Lithwick wrote a smart piece on this subject for Slate. She argues that the GOP will never succeed by trying to paint Sotomayor as "too human." The argument Republicans are trying to make is that judges shouldn't decide cases based on whether they identify with or feel sorry for certain plaintiffs or defendants. They'll just need to find a more articulate way to make that case than they have so far.


Washington, D.C.: What do you make of Sotomayor's Catholicism and the abortion question?

Stay thirsty, my friend.

Ben Pershing: To borrow a line from Dos Equis, thanks for "The Most Interesting Question in the World." There were a few stories in this morning's paper specifically focused on Sotomayor's views on abortion. Her record on the subject is thin, and the record she does have actually makes some abortion rights supporters nervous. Remember, conservatives were surprised when Souter turned out to be a supporter of Roe v. Wade, and liberals don't want to make the same mistake now in reverse.

I have not thought about this much in the context of Sotomayor's Catholicism. Speaking of which, if she is confirmed, the Supreme Court will have six Catholic justices, two Jewish justices and just one Protestant (Stevens). Interesting.


Arlington, Va.: So how seriously are we to take North Korea's latest threats of war if any action is taken against them for their recent nuclear test? For the last 15 years, North Korea's threatened war if the wind so much as changes direction, so how much credibility do their overly bellicose threats carry now?

Ben Pershing: If I knew how to properly interpret and predict the behavior of the North Korean government, I would probably have a much more important job than I do now. It's true that N. Korea has always been full of bellicose rhetoric, so you take everything the regime says with a grain of salt. But the seemingly advanced stage of their nuclear program makes everything they say just that much scarier, whether you believe they're serious or not.


Duly Noted: Just an interesting aside for this chat: It's so common for people to see Puerto Ricans as foreigners. Even the WaPo isn't immune):


The May 27 editorial "The President's Pick" incorrectly referred to Supreme Court nominee Sonia Sotomayor as the daughter of "immigrant" parents. Judge Sotomayor's parents were not immigrants but were born in Puerto Rico after passage of a 1917 law that automatically conferred U.S. citizenship on island-born residents.

Ben Pershing: I have noticed that mistake made several times this week. It's true -- her parents should not be described as "immigrants."


Washington, D.C.: Do you have any idea why Bush U.S. attorneys are still serving? Seems absurd to me.

Ben Pershing: There are multiple reasons, some practical and some political. First, Obama wants to ensure some continuity and make sure there are experienced hands in these jobs until he has time to come up with his own candidates for the positions. Many of the sitting U.S. attorneys are career prosecutors and not necessarily partisan Republicans, and so Obama may want to keep them on. And given the controversies the Bush administration went through on this subject, the last thing Obama wants to do is be seen as installing a bunch of Democratic loyalists.


Washington, D.C.: Watertown's statement is as foolish as it is a misrepresentation. Has this country gone so crazy that both liberals and conservatives can't agree on a need for impartial judges (as an ideal at least!)?

Ben Pershing: Is it really possible for any judge to be "impartial"? What is "truth," anyway? Oh, sorry. I accidentally wandered into the chat on postmodernism.


New York: Thank you for chatting with us. I notice that something wonderful is happening in England: every day the papers are printing individual examples of unethical use of tax payer dollars by MP's, from building swimming pools, to real estate speculation, to tax avoidance, day after day, relentlessly. The tax payers in England are furious and many careers will end.

Could you imagine if a newspaper in this country, or better yet, the networks, did this every day with respect to lobbyist money and the votes that our "representative" make, the tiny provisions they insert into complex bills to reward favored contributors, etc.? Not just Abramoff's friends, or Jack Murtha, but all of them. In fact, could you imagine the reform of our system ever occurring unless something along these lines ever happened, and not a generalized attack against the entire body, but individual cases, with facts and numbers. Do them all; Start with Alaska and end with West Virginia; a People's Audit. It would be more significant than the Watergate story. On what grounds could such a story be attacked?

Ben Pershing: I have been following that Parliamentary scandal in the British papers, and it has been fascinating. As for your suggestion, there are reporters in DC and around the country working those kinds of stories every day. The problem for the media is that we have limited resources. There are fewer and fewer outlets than can spend the time and money necessary to do really exhaustive investigative work, and a lot of regional newspapers barely cover their local congressional delegation at all. So rather than going exhaustively through every state and member, the press has to pick its spots, like with the Murtha story.


Philadelphia, PA: Does absolutely EVERYTHING have to be gamed like this? If Sotomayor has commensurate experience, reasonable views, and decent character, shouldn't she be confirmed? Isn't that how things largely ran before Bork? Were Democrats circulating distorted PR campaigns the day Sandra Day O'Connor was nominated? How about Earl Warren? Wouldn't we all benefit from a return to civility -- so that we'd know once again when we should really get worked up about something?

Ben Pershing: It really all depends on what you believe the Senate's proper role should be in confirming these justices. There is a school of thought that the president gets to make his picks, and the Senate should approve them unless they are obviously "unqualified" (whatever that means). But there's also an argument to make that the Senate is supposed to advise AND consent, meaning that the chamber can actually weigh in on what makes a good judge, which legal philosophies are the best and so on. That doesn't mean anyone should be unfairly attacked, but some scrutiny does seem like a healthy thing given that this is a lifetime appointment.


Washington, DC: This is how I (and I admit I'm an attorney) would phrase it: all judges take with them to the bench their life experiences, but those experiences, and their personal sympathy for a particular cause, should not interfere with their application of the law and particularly, precedent. For example, a pro-life judge should not overrule Roe v. Wade, and the many, many cases relying on its findings, simply because he or she believes that life begins at conception. Similarly, a judge from a minority background should not refuse to apply case law on the Equal Protection Clause simply because the plaintiffs are a group of white male firefighters.

Ben Pershing: That seems like a sensible guideline to follow. The question is whether it's easy for a judge to factor in their life experiences without letting it "interfere" with their application of the law. Seems easier said than done, but I guess that's why these are difficult jobs to do.


Evanston, Illinois: Does Roland Burris have any friends in the Senate? Is he being ostracized?

Ben Pershing: If he has any real friends in the chamber I haven't seen it. I think other Senators are polite with him and make small talk -- "ostracized" isn't quite the right word -- but there is still a pervasive feeling among many of Burris' colleagues that he simply shouldn't be there.


Boston: If Obama had submitted the ghost of Reagan, would Republicans still find something to criticize and complain about? They just keep living up to the "Party of NO" stereotype.

Ben Pershing: That scenario is totally unrealistic, because Reagan wasn't a lawyer. But how about the ghost of Lincoln? That might make for a fine TV show. I also would enjoy seeing the nomination of Unfrozen Caveman Lawyer. "I don't understand this 'Griswold v. Connecticut.' I'm just a caveman."


RE: Philadelphia, PA: Why can't we just come out and speak forcefully and clearly. All of these confirmation "battles" are sideshows designed to help fund-raisers fleece unsuspecting true believers. Why the media participates in the game is beyond me. I wish we would cover the 95 percent of cases that affect people's lives instead of maintaining 100 percent focus on a case that was settled 36 years ago and will not be overturned (too lucrative for both sides to keep things as is).

Ben Pershing: It's definitely true that it's in the interest of activist groups on both the Right and Left to hype these Supreme Court fights in order to raise more money. Sotomayor looks very likely to be confirmed, barring a big surprise, and yet I'm sure you wouldn't know that from reading the fundraising missives of all these various groups.


Baltimore: I hear people attacking Sotomayor as having "too much empathy" and "not posessing judicial temperament," and I translate it as, "women are too emotional to sit on the Supreme Court" and "Latinas throw temper tantrums." Are these the dog whistle messages that they're trying to send?

Ben Pershing: I had not thought of it that way but it's always possible that these are code words. Some Latino groups have already gotten upset at the suggestion -- particularly in a New Republic piece by Jeffrey Rosen -- that Sotomayor might not have the intellectual firepower to sit on the court. They wonder whether a non-Hispanic candidate with the exact same record and resume would face the same questions.


Kingston, NY: Hi Ben, Perhaps it is time for newspapers and reporters to separate. A new model might be a pool of invetigative reporters to bid their stories...but I digress. I wanted to ask about a recent supreme court case which involved strip searching a minor. I don't remember the outcome, but I do know that there was a comment from a judge, referring to the fact that he remembers as a young boy in school, having to change in public for gym. Talk about empathy!!! Not only is this a man's point of view, but it is definitely dated. Even young boys are afforded more privacy now. Isn't this a goood example of how "empathy" might affect one's judgement?

Ben Pershing: Yes, that is a good example. The case is Safford Unified School District v. April Redding, and the court heard it in April. In an interview with USA Today recently, Ruth Bader Ginsburg made exactly that point about the strip search case. She said the male justices couldn't possibly have the perspective on it that she did because, "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."


Not a lawyer: There is no Constitutional requirement that a Supreme Court Justice has to be a lawyer.

Ben Pershing: That's absolutely true. But I don't think any modern president would ever nominate a non-lawyer.


Burlington, Mass.: I know the use of military force is a serious undertaking, and I realize that we fought a tortuous war in Korea, but what is the possibility of the U.S. "taking out" the nuclear capabilities of North Korea? It seems they are a rogue international outlier and that the reaction -- and possibility of response -- would not be great. What's the greatest risk of a "surgical strike" against North Korea?

Ben Pershing: I think the biggest risks would be a) an air strike wouldn't actually work; and b) North Korea would respond by invading South Korea, and then the U.S. would have to fight them on the ground because we've got so many troops there. Neither of those possibilities are fun to contemplate.


Ben Pershing: Thanks for all the good questions. Until next time, stay thirsty, my friends.


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