The Problem With Empathy

Our President has said many times that his kind of nominee for the Supreme Court would blend a respect for the Constitution and the nation's laws with "empathy", saying, "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is 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,"

A couple of things here. First, empathy as a judicial principle is problematic from the start. Empathy for whom? The unborn? Those whose property has been confiscated to make room for a mall? The corporation forced to defend itself against a discrimination claim years after the alleged discrimination occurred? Empathy is a personal and imprecise attribute, one with some application in the minor criminal courts, where empathy for a victim might drive a tougher sentence, or empathy for the way a perpetrator was raised might drive a lighter sentence. But the Supreme Court does not sit in judgment of petty crimes. It sits in judgment of great Constitutional issues, and the individual empathic leanings of its justices have no place in the debate. Sure, they can express their empathy in their opinions, they can talk about how unfair or difficult something is, but in the end, they must decide on the constitutionality of a question.

Secondly, the President's little riff above, ("it is 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,") is ENTIRELY appropriate to the elected officials who MAKE our laws. Questions of empathy and emotion have a full seat at the table as policy is made (though I personally weight them less than facts--I'm funny like that, I'm a Republican), but have NO PLACE in Supreme Court decisions.