Preparing to fill the Supreme Court seat soon to be vacated by David Souter, President Obama has announced that he wants a judge with “empathy.” According to the President, his nominee must understand “justice” to be “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."
As a former constitutional law professor, surely the President understands that possessing “empathy” in the abstract is an absolutely meaningless criterion for a judge. When a President emphasizes the importance of “empathy,” the more proper question becomes not whether a particular judge has empathy, but rather, for whom? After all, empathizing with a woman who wants a late-term abortion necessitates a certain lack of empathy for her unborn baby. Empathy for accused criminals can feel like something very different to their victims.
In fact, by invoking a comfortably-undefined “empathy” as the indispensable quality in a justice, President Obama is deftly deploying warm, fuzzy rhetoric to signal that he intends to select a justice with a very specific left-wing policy agenda. Looking for a nominee who is concerned about whether people “can make a living and care for their families” means he is seeking a judge who will side with unions or plaintiffs against businesses. Nominating a jurist who worries about whether people “feel safe in their homes” means finding a person who will greet with skepticism the claims of law enforcement in search and seizure (or national security) cases. And selecting a judge pledged to make people feel “welcome in their own nation” means naming a justice with the politically correct views on hot button social issues ranging from gay marriage to affirmative action to immigration to removing faith from the public square.
Barack Obama won the election fair and square, so there would be no grounds for objection if he were listing the criteria for a nominee to a policy-making position. But he isn’t. He is selecting a jurist, and therefore is supposed to be seeking someone who will uphold the rule of law by deciding cases impartially, based only on the law and the facts before him – and nothing else.