The last few weeks have been muy caliente in terms of Supreme Court dish.

To recap, Supreme Court Justice David Souter announced that he’s retiring from the Court.

President Obama then laid out his criteria for selecting a new Justice, which included the quality of empathy (which should be no surprise, considering that he called for judicial empathy way back in 2007).

Obama’s mention of the scary and perhaps tantalizingly foreign-sounding word “empathy” has driven the GOP into ever-heightening states of abject apoplexy at the ludicrous suggestion that a judge should possess an emotion that allows a human being to step into the shoes of another.

I know, I know; I shouldn’t expect anything out of the GOP right now besides lies, misdirection and childish name-calling. However, this furor over “empathy” has really stuck in my craw. I’ve been meaning to write a big post on it but Dahlia Lithwick appears to have done the job even better than I could:

One is surely entitled to say that President Obama’s repeated claim that he seeks “empathy” in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can’t help but wonder to what purpose.

Webster’s defines empathy as “the experiencing as one’s own the feelings of another.” Obama, in The Audacity of Hope, 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.

But Republicans have gathered up their flaming torches and raised their fists to loudly denounce empathy and all empathy-based behavior as evil. Last Friday, RNC Chairman Michael Steele, sitting in for Bill Bennett on the Morning in America syndicated radio show, blurted out, “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind!” Nice…

When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering? For a group so vociferously devoted to textualism and plain meaning, conservative critics have an awfully elastic definition of the word empathy. It expands to cover any sort of judicial malfeasance they can imagine. Empathy—the quality of caring what others may feel—signals intellectual weakness, judicial immodesty, favoritism, bias, and grandiosity. John Yoo also seems to be of the view that the kind of emotional incontinence that begins with empathy for others quickly leads to being “emotive” on the bench. Evidently it’s a short hop from empathy to having the judicial vapors.

Read the whole article.

From a textualist perspective, I would also like to highlight for our Dear GOP Leaders some antonyms to the concept of empathy:

indifference: “a lack of interest or concern”
disregard: “a lack of regard or attention; neglect”
callousness: “feeling or showing no sympathy for others”
unconcern: “the absence of feeling or concern”

Hmm, come to think of it, those words seem to capture pretty succinctly the GOP’s preferred approach to politics and appellate jurisprudence.

Update: Here’s a more fulsome quote from the article Lithwick cites above, written by conservative law professor Douglas Kmiec:

[D]o we know empathy when we see it? Maybe not. Conditioned to receive the standard resume consisting of high grades, a court clerkship, practice with a large corporate law firm, followed by service on an appellate bench, the Judiciary Committee would be baffled by a woman lawyer who took time from practice to raise her children; the law graduate who taught secondary school or the volunteer in AmeriCorps; or even the sole practitioner whose work is seldom highly paid, except in the satisfaction derived from bearing other people’s burdens as “family lawyer.”

Equally baffling to the committee will be the notion that one can be empathetic toward all sides of a dispute. By this rubric, there would be no Court seat for the prophet Micah whose admonition “to do justice, to love kindness, and to walk humbly with your God” is frequently referenced by speakers wishing to inspire newly minted lawyers.

Obama proposes to make Micah’s plea for justice more than graduation fodder. To do this, it is possible that he will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn’t give empathy the time of day. If Obama succeeds even with this more limited challenge, he will have exploded the notion that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.

  1. Gherald says:

    Conservatives fear empathy is a euphemism for what they'd call activism.

    Empathy is useful insofar as it helps understanding, but decisions shouldn't be based on empathy. Justice should be blind.

    • Metavirus says:

      as a lawyer, I can tell you categorically that the notion that "conservative" appellate jurists are simply able to feed a set of facts into a constitutional computer and "Presto!", out pops a strict constructionist decision is a complete fiction.

      american legislators are unfortunately horrible at actually writing laws. they usually just slap something together and leave it to to the courts to work out all the myriad implications arising from the law they hastily passed. in europe, it's actually quite a lot better, because legislators spend a lot of time writing results and consequences into laws before they go on the books.

      all "empathy" requires is the ability to place oneself in the position of both sides, and then come up with a just decision based on the law and precedent. the notion that "empathy" is a code word for mindless, blubbering bias toward some group or another is just laughable.

  2. Schu says:

    What do you expect from a party that will spend trillions on an oil war, but scream socialist when we try to take care of our own people.

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