A Just Judiciary

Legal experts from Bush and Clinton administrations examined the political climate of the Supreme Court at GW June 22.

June 23, 2010

How Solicitor General Elena Kagan should respond to questioning at her confirmation hearing before the Senate Judiciary Committee was the main topic of debate between Rachel Brand, former assistant attorney general in the Bush administration, and Walter Dellinger, former acting solicitor general in the Clinton administration, at GW’s Jack Morton Auditorium June 22.

Politico Editor-in-Chief John F. Harris moderated the event, titled “Debating Our Judiciary: Can We Search for the Center?” between Ms. Brand, a professorial lecturer at GW Law School and counsel at Wilmer Cutler Pickering Hale and Dorr, and Mr. Dellinger, a visiting professor at Harvard Law and chair of appellate practice at O’Melveny & Myers.

Ms. Brand and Mr. Dellinger disagreed on how specific a Supreme Court nominee should be in answering questions during the confirmation process.

Mr. Dellinger referenced Ms. Kagan’s 1994 article in the University of Chicago Law Review, in which she criticized some Supreme Court nominees for not being open about their own constitutional views during confirmation hearings, and said he “wholly agrees” with her point.

“I think the article was very nuanced and thoughtful and showed a really great sense of institutional roles and a sense of the role of candor and transparency,” said Mr. Dellinger.

Ms. Brand said it is dangerous for the nominees to share how they would rule in cases under oath because it could bind them to rule in the same way later on. “My view of judging is it doesn’t matter whether you think abortion is a good or bad thing; that should be irrelevant,” said Ms. Brand. “It’s whether, having considered all the legal issues, you think abortion is protected by the Constitution or not. It’s a legal question.”

Ms. Brand and Mr. Dellinger also debated the role of empathy in judicial decision-making. Mr. Harris read an excerpt from President Obama’s statement in 2005, when he told the Senate Judiciary Committee that he opposed Chief Justice John Roberts’ confirmation to the court because of his lack of empathy, and asked if jurisprudence should be motivated by empathy.

Ms. Brand said the “empathy standard” should not be used as the sole basis for making a decision. “You don’t just use what’s in your heart; you look for some neutrally derived legal principle,” she said. “No judge is an automaton; whether consciously or not, people’s experiences affect them. That’s appropriate in certain cases; if you’re looking at a factual argument and you’re determining whether it’s plausible or reasonable, clearly your experiences affect your judgment there and I think that’s fine. But if empathy means you will go for what you’re most sympathetic to that day, then it’s problematic.”

Arguing that empathy has a place in judicial deliberations, Mr. Dellinger referenced the 2007 Supreme Court decision that it was unconstitutional to use race as a factor in assigning children to public school systems, and said it was “exactly the same as what happened under Jim Crow segregation.”

“In each of these cases, a parent has to say to a child, ‘You can’t go to that school because of your race,’” he said. “… [Empathy] is the capacity to understand how things look and feel and affect someone who is situated differently than from the way you are situated. It’s the capacity to put yourself in the position of another person and really understand.”

The debate, sponsored by Politico, the American Action Forum and the Center for American Progress, brought a packed house to GW's Jack Morton Auditorium. “This event is an example of GW being a destination for the important issues of the day,” said Vice President for External Relations Lorraine Voles.

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