I was reading the Washington Post this morning, and in an article on the nomination process I came across this quote:

“Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. ‘What he means is he wants empathy for one side, and what’s wrong with that is it is being partial instead of being impartial,’ said Long, a former clerk to Justice Clarence Thomas. ‘A judge is supposed to have empathy for no one but simply to follow the law.’”

The quote from Ms. Long aptly illustrates the problem I have with this whole debate over empathy. First, I doubt that Ms. Long has access to Obama’s thought processes, and so I question her ability to accurately forecast what Obama “means” in opposition to the actual words he spoke.

Second, Ms. Long — I believe falsely — infers that Obama “means” empathy in a one-sided way, and as an indication of “partiality” in judging. She then argues that impartiality necessarily requires a bar on empathy.

I think that is incredibly wrong-headed. Empathy, as I attempted to state earlier, should not be confused with sympathy, but is rather an attempt to identify the motivations and state of minds and circumstances in which a person or persons find themselves. An empathetic judge should be empathetic toward all sides of a conflict in seeking out the fullest understanding what brought a real-world situation into a courtroom. Empathy, in that sense, is at the heart of what impartial judging should be all about. Ms. Long’s hackneyed view of impartiality doesn’t circumscribe judicial discretion; it eliminates any latitude for the application of reason. That’s not a recipe for good judging, and I doubt that there are too many actual members of the legal profession who would agree with her descrioption of impartiality.

For the record, Scalia has been far more activist in pursuing conservative preferences over the past ten years than Stevens, Souter, Breyer or Bader-Ginsburg. But ultimately, this isn’t a debate about judicial activism. We can lament the fact that conservative and liberal judges often feel compelled to impose judgments that have ideological implications, but that’s the world in which we live: we now have two very distinctive and ideological jurisprudential philosophies at work within the legal profession, as illustrated by the fact that we have the American Bar Association and the Federalist Society. And seldom shall the twain ever meet, I’m afraid.

We should be focusing on the qualifications of the people Obama wants to nominate. Failing that, perhaps we should agree to confine ourselves to the strictures of Scalia’s “originalism,” and not read into Obama’s statements about the criterion he would use to nominate candidates for the Supreme Court too much more than he actually says.

I also agree that justice is best served when it is fair and impartial. I would quibble, however, with the opening sentence of the third paragraph: the point and purpose of the justice system is to produce just outcomes, which certainly involves passing judgments that may either condemn or exonerate. It requires discernment to determine which. You call that “the empathetic whims of an activist judge.” I disagree.

As you say, the proof will, no doubt, be “in the pudding,” to use the metaphor.

Christ was obviously speaking about personally judging others without first having applied the same standard to ourselves.

The point and purpose of the justice system is to pass judgment. It should be done fairly and impartially based upon a system of laws rather then the empathetic whims of an activist judge.

We may differ on what President Obama meant. The proof will be coming quickly and its highly likely a liberal activist will be the nominee. That’s what he meant by empathy.

Judges lacking in empathy are likely to be indifferent to the impact of their rulings, and hence to be arbitrary and capricious judges, which is not something that we should look for in occupants of the highest court in the land (we already have enough of those types:) ).

Empathy also should not be viewed as some “touchy-feely” squishiness, and empathy is certainly not an autonomatic tendency to “sympathize” with anyone before their court who finds themselves in distress; rather, empathy involves the capacity to put oneself in the place of another, in order to better understand how they found themselves in the circumstances that bring them to judgment. In other words, an empathetic judge is not (necessarily) a lenient judge, nor is it axiomatic that an empathetic judge would always support affirmative action policies.

Recall the words of Matthew 7.1: “Judge not, lest ye be judged.” I don’t view that as a admonition to let the wicket go free, or to some sort of moral relativism. Rather, I see it as a call to be humble in the use of the power of judgment, so that we might avoid leaping to unfair and irrevocable judgments. Matthew 7.1 should remind us that we are all sinners; in short, is not Matthew 7.1 is a call for… dare I say it… empathy?

Here is another great excerpt,
“Some people say that who Barack Obama appoints to replace Justice Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with “empathy”– which is to say, with justices who think their job is to “relieve the distress” of particular groups, rather than to uphold the Constitution of the United States.”

I’ve been so guilty of that kind of thinking.