The Volokh Conspiracy - Sotomayor Rejects "Empathy" Standard for Judging:

One of the more interesting parts of today's hearings was the following exchange between Judge Sotomayor and Senator Jon Kyl (R-AZ).

KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- 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 the 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 -- I 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. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says.

KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I'm asking -- this is not a trick question.

SOTOMAYOR: No, I wasn't...

KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"?

SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there."

KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts.

KYL: Right. Now, thank you for that.

	[Jonathan Adler, July 14, 2009 at 9:12pm] Trackbacks Sotomayor Rejects "Empathy" Standard for Judging: One of the more interesting parts of today's hearings was the following exchange between Judge Sotomayor and Senator Jon Kyl (R-AZ). KYL: Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- 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 the 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 -- I 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. The judge applies the law to the facts before that judge. KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it's been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he's cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don't have any legal argument to me, Judge, please go with your heart on this or your gut? SOTOMAYOR: Well, I've actually had lawyers say something very similar to that. (LAUGHTER) I've had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it's just not right. (LAUGHTER) But it's just not right is not what judges consider. What judges consider is what the law. says. KYL: You've always been able to find a legal basis for every decision that you've rendered as a judge? SOTOMAYOR: Well, to the extent that every legal decision has -- it's what I do in approaching legal questions is, I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use... KYL: Right. And -- and all I'm asking -- this is not a trick question. SOTOMAYOR: No, I wasn't... KYL: I can't imagine that the answer would be otherwise than, yes, you've always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven't ever had to throw up your arms and say, "I can't find any legal basis for this opinion, so I'm going to base it on some other factor"? SOTOMAYOR: It's -- when you say -- use the words "some legal basis," it suggests that a judge is coming to the process by saying, "I think the result should be here, and so I'm going to use something to get there." KYL: No, I'm not trying to infer that any of your decisions have been incorrect or that you've used an inappropriate basis. I'm simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren't cases directly on point. That's true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever. But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent? SOTOMAYOR: Exactly, sir. We apply law to facts. We don't apply feelings to facts. KYL: Right. Now, thank you for that.