As Justice Sonia Sotomayor did a year ago, Supreme Court nominee Elena Kagan backed away today from President Barack Obama's statements about the role of empathy in judging.
The subject came up at Kagan’s confirmation hearing under questioning from Sen. Jon Kyl (R-Ariz.). Kyl, the Senate’s No. 2 Republican, read part of a 2005 speech in which Obama compared difficult court cases with marathons and said the “last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
Kagan said she does not agree with that analogy.
“Senator Kyl, I think it’s law all the way down,” she said. “The question is what the law requires. Now, there are cases where it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on cases that come before the Supreme Court…. But it’s law all the way down, regardless.”
Kyl also read a quotation from Chief Justice John Roberts Jr. at his 2005 confirmation hearing: “If the Constitution says that the little guy should win, the little guy’s going to win in court before me,” Roberts said. “But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.”
“Do you agree with Chief Justice Roberts?” Kyl asked Kagan.
“I do, Senator Kyl,” Kagan replied, without elaborating.