Blind Justice?

Empathy has been getting a lot of buzz lately, what with President Obama declaring the facility to experience as one’s own the feelings of another as a desired trait for Justice Souter’s replacement.

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook … It’s also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

RNC Chairman Michael Steele, while sitting in on Bill Bennett’s syndicated radio show, blurted out, “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind!”

Conservatives concurred albeit in a more appropriate manner. Republican Senator Orrin Hatch calls “empathy” for what it really is.

He’s also said that a judge has to be a person of empathy. What does that mean? Usually that’s a code word for an activist judge … But he also said that he’s going to select judges on the basis of their personal politics, their personal feelings, their personal preferences. Now, you know, those are all code words for an activist judge, who is going to, you know, be partisan on the bench.

Economist and social commentator Thomas Sowell warns us:

That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Folks have latched on to the poor word. Perhaps with good reason as the ability to walk in another person’s shoes seems rather important to Mr. Obama. However, is that necessarily a bad thing? Dahlia Lithwick points to the president’s book The Audacity of Hope, in which he described empathy as “a call to stand in somebody else’s shoes and see through their eyes.”

To Obama, empathy chiefly means applying a principle his mother taught him: asking, “How would that make you feel?” before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.

Peter Slevin also reminds everyone that

Obama has deeper experience with constitutional law than any of his modern predecessors, having spent 11 years as a lecturer on the subject at the University of Chicago. For many of those years he was also an Illinois state senator, working the intersection of law and politics.

So people should calm down, meet the president’s choice and go through the vetting process. The president will not nominate someone who will upend the rule of law and arbitrarily make decisions. The touted short list bears this out. Empathy is not code. Rather he seeks someone who realizes that laws are made by and for men and not the other way around. Which, really, is not a bad thing is it?
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