Networks Sidestep Sotomayor’s Repudiation of Obama’s ‘Empathy’ Doctrine

Two months ago, as President Obama was contemplating a replacement for retiring Supreme Court Justice David Souter, many in the media elite — particularly NBC News reporters and anchors — sycophantically touted Obama’s credentials as a constitutional law professor as evidence of his deep experience when it came to the judiciary.

Yesterday, however, Obama’s pick for the Court, Judge Sonia Sotomayor, explicitly repudiated Obama’s belief that judging should be based on “empathy” or “the heart.” Sotomayor told senators: “I don’t, wouldn’t, approach the issue of judging in the way the President does.”

None of the broadcast networks juxtaposed Sotomayor’s slap at Obama with the President’s supposed brilliance as a constitutional scholar, or explored whether it was credible that Obama’s nominee really disagrees on the role of empathy, what the President previously declared the “essential ingredient” of a good judge.

Among the broadcast network newscasts last night, only NBC ran the clip of Sotomayor distancing herself from the President’s liberal activist philosophy, while CBS mentioned the remark but did not show the video. ABC’s Jan Crawford Greenburg omitted the exchange from her report on Tuesday evening’s World News, although George Stephanopoulos found it worth talking about on Wednesday’s Good Morning America.

“How’s that for gratitude? She threw the President under the bus right there,” Stephanopoulos exclaimed to Robin Roberts before cynically adding: “But the White House doesn’t care at all, because they know she ended up on the safe ground where she wants where they want her to be.”

Back in May, when the President was faced with replacing Souter, all three networks referenced Obama’s background as a constitutional scholar, although NBC was by far the biggest suck-up. A few examples:

■ “The president is a constitutional law professor. He's got that background....” — David Gregory, Today, May 1.

■ “The president, a former constitutional law professor, took such interest that back in December, he personally gave his staff some names to consider....” — Savannah Guthrie, Nightly News, May 1.

■ “Remember, Obama is a constitutional law professor, by background, so obviously he wants somebody who's very, very smart and understands the law....” — Newsweek senior editor and NBC contributing correspondent Jonathan Alter on Today, May 2.

■  Correspondent Chuck Todd: “He finds himself with an even fuller plate of issues, including a Supreme Court vacancy, one issue the former constitutional law professor is likely to handle personally.”
President Obama: “I view that quality of empathy and of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.” — NBC’s Today, May 4.

■ “Aides say the President, who once taught constitutional law, is actively involved....” — NBC’s Pete Williams on Today, May 14.

On Tuesday’s Nightly News, Pete Williams showed how Sotomayor repudiated Obama’s philosophy, but did not delve into what his own nominee’s rejection says about Obama’s supposed constitutional or judicial expertise:

PETE WILLIAMS: Judge Sotomayor disagreed today with President Obama's statements that judges need empathy.  As a senator, he voted against [Chief Justice John] Roberts in 2005, explaining at the time that judges need some extra quality to decide the hardest cases.

BARACK OBAMA (2005 Senate speech): In those difficult cases, the critical ingredient is supplied by what’s in the judge's heart.

SENATOR JON KYL: 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 is in the judge's heart?

JUDGE SONIA SOTOMAYOR: No, sir. That's – I don't – wouldn't approach the issue of judging in the way the President does.

Wednesday morning on Today, Williams offered a summary of the prior day’s hearing that did not include any reference to the exchange with Kyl.

On Tuesday’s CBS Evening News, correspondent Wyatt Andrews briefly noted the exchange at the end of his report, saying it showed “independence” on Sotomayor’s part: “The judge even showed some independence from the President, who once famously said that five percent of judging comes from the heart. Sotomayor, whose mantra this week has been her strict adherence to the law, disagreed saying the heart should not be driving law.”

On Wednesday’s Early Show, Andrews offered only a vague reference: “Sotomayor emphasized that in her 17 years of actually being a federal judge, she has never once ruled based on sympathy or bias.”

Many conservative legal experts doubt the authenticity of Sotomayor’s professed rejection of judicial activism and “empathy,” given her judicial record, numerous speeches and articles — and the fact that President Obama nominated her in the first place.

But for network reporters who touted Obama’s judicial smarts just two months ago, does Sotomayor’s repudiation mean the President isn’t the expert he’s cracked up to be? Or is it evidence of a cynical strategy to pose Sotomayor as a judicial conservative for the confirmation hearings, knowing that once she’s on the Court she showcase her empathy to her heart’s content?

Either way, it seems like a story worth exploring before these hearings are history.