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Obama's Empathy Litmus Test

By Dan Froomkin
12:30 PM ET, 05/ 4/2009

Who knew such an innocent-sounding word could get people so riled up? But conservatives are finding much to hate in President Obama's assertion on Friday that he considers "empathy" a prerequisite for a Supreme Court justice.

In a surprise appearance in the middle of a White House press briefing on Friday, Obama confirmed that Justice David Souter is stepping down and talked a bit about what he's looking for in a replacement: "I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book; 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.

"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes."

Josh Gerstein writes for Politico that "empathy" became a central topic on the Sunday talk shows: "'What does that mean? Usually that's a code word for an activist judge,' Sen. Orrin Hatch (R-Utah) said on ABC's 'This Week.' He said a judge needs to 'be fair to the rich, the poor, the weak, the strong, the sick [and] the disabled.'

"'I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that's a concern,' former Republican Party Chairman Ed Gillespie said on NBC's 'Meet the Press.'"

But, as Gerstein writes: "It remains to be seen whether Republicans can gain traction among the general public in arguing that judges need to be fair to 'the rich' and 'the strong.'"

Many conservatives apparently see empathy -- which involves understanding others' feelings -- as a zero-sum game.

"He says he wants to appoint judges who show empathy, but what does that mean?" Wendy Long, chief counsel to the Judicial Confirmation Network, told The Washington Post. "Who do you have empathy for? If you have empathy for everybody, you have empathy for nobody."

There will inevitably be great drama associated with who Obama eventually picks, as far as their background, their gender, their ethnic origin, their age -- and whether White House vetters fail to pick up something important. And conservative activists will inevitably fight whoever Obama settles upon. But realistically speaking, this isn't shaping up a as a fight for the ages.

As Michael A. Fletcher and Paul Kane write in The Washington Post: "With the Republican opposition in the Senate weakened by the November elections and last week's defection by Sen. Arlen Specter of Pennsylvania, few conservatives held out much hope that they could block an Obama nominee."

Dan Balz writes in The Washington Post: "The replacement of Souter, who has been a reliable part of what constitutes a liberal bloc on the high court, is not likely to shift the bench's ideological balance. Obama will almost certainly reinforce the liberal bloc and, with the nomination of a youthful justice, conceivably reinvigorate that wing of the court for many years to come....

"On a court that is devoid of Latinos and has just one woman and one African American, Obama could instantly alter the gender or racial balance in a significant way. That is why so much of the early speculation on a successor has focused on women in particular."

Joan Biskupic writes for USA Today: "As Obama and his aides screen candidates to make the first Democratic nomination in 15 years, well-established — and often overlapping — judicial models can guide his choices and shape public expectations.

"For example, all nine of the current justices are former U.S. appeals court judges, elevated by presidents (from Gerald Ford to George W. Bush) who followed a familiar script of looking to lower courts for nominees.

"During the campaign, however, Obama expressed his preference for a justice with real-world experience in the mode of former California governor Earl Warren, who presided as the court struck down school segregation and helped generate a civil rights revolution."

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