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Obama's Empathy Litmus Test

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."

By Dan Froomkin  |  May 4, 2009; 12:30 PM ET
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I'm not surprised about the right's problem with the word empathy. I think one thing that characterizes a conservative personality is the inability to place oneself in someone else's shoes and the inability to identify with people who are different from themselves.

Another aspect of this is how much the press calls Souter a liberal. It is an indication of how much the court has been tilted to the extreme right that a moderate Republican like Souter can be characterized as liberal.

Posted by: troyd2009 | May 4, 2009 2:45 PM | Report abuse

Nice of Orin Hatch to admit that the Democrats use "code words", whereas "activist judge", "Fairness" "Colorblindness" "Strict Constructionist" are of course utterly devoid of carefully nuanced political double entendre.

The Republicans would rant against Solomon at the start of his reign, or Solon at his most perspicacious. Any judge who's whole judicial bent isn't plainly known to them, and acceptable to them, "Of course you wouldn't dare uphold Roe v Wade again, would you sir?" will get the whole Republican tantrum. When Specter, Collins, and Snowe vote to invoke cloture, two more Senate seats will change parties, the republicans will again cheer their return to ideological purity while inveighing "excessive self interest" and "unthinkable disloyalty" in the Senators who found it more than expedient to leave the big tent for a warm and cozy home.

And after 2010 there will be exactly six Senators from North of the Ohio and east of the Rockies.

Posted by: ceflynline | May 4, 2009 4:12 PM | Report abuse

troyd2009 - for the record, I agree with your point(s) totally. Well said.

However, I also think this whole idea of trying ever so hard to convince others of your point of view here on this sort of comment page is wearing very thin. I do not need to read opinions which agree with mine to give myself validation, nor do I require the other side to call me names and make ugly comments about my lineage to shame me into changeing my views to match theirs. I am almost to the point where I am considering discontinuing reading this sort of thing. It's all getting so creepy and slimy, the way we treat each other here in this kind of comment section. What good does it serve..? That sorta begs the question: "What am I doing here now?". sigh....

Posted by: geoffreyshannon | May 4, 2009 4:24 PM | Report abuse

A "judicial activist" is someone who didn't vote the way you wanted. If you use the actual definition, a judge who votes to change the intent of the legislative body, the conservative court of the last 20 years has been the most "activist" of all Supreme Courts, including the Warren court.

Posted by: dickdata | May 4, 2009 4:24 PM | Report abuse


Six REPUBLICAN senators.

Posted by: dickdata | May 4, 2009 4:26 PM | Report abuse

"ceflynline: Six REPUBLICAN senators.
Posted by: dickdata

You are correct sir, but I get locked out of so many attempts to post that I wasn't sure my post had cleared, so couldn't post a correction.

Posted by: ceflynline | May 4, 2009 6:04 PM | Report abuse

Screw "Empathy"

Follow the written law.

Posted by: ImpeachObama | May 4, 2009 6:20 PM | Report abuse

"Screw "Empathy" Follow the written law.
Posted by: ImpeachObama"

If it is possible to follow written law then it never gets to the Supreme Court, which passes judgment on laws themselves, and on whether the actions undertaken are consistent with the entire body of law, especially the constitution.

The judge who presides, and who rules, without empathy usually rules with little justice and less legal underpinning.

That you may know that this is so, look up references to "Unjust Judges" through out scripture.

But enough Republican justices these last few years have been quite adept in following the law when it aided their party, and overturning it when it blocked their party's ends. They follow the law only when it leads them where they believe they ought to be.

Posted by: ceflynline | May 4, 2009 8:24 PM | Report abuse


Screw "Empathy"

Follow the written law.

Posted by: ImpeachObama "

The perfect slogan for the move to prosecute Bush, Cheney and their fellow torturers!

Screw empathy, follow the written law!

Posted by: thrh | May 4, 2009 10:46 PM | Report abuse

"Screw "Empathy"

Follow the written law."

This is the kind of thing people say when they know absolutely nothing about the law and especially about appellate law. I used to think this way, too, until I went to law school.

Appellate courts in our legal system decide what the law IS. If there is no ambiguity in the application of a "written" law to a particular set of facts, then the matter rarely gets into court and only goes through the appellate system if there is a good argument that the "written" law violates our top-level law, the Constitution.

But the vast majority of cases in appellate court are cases in which it is NOT CLEAR how the "written" law applies to the facts of the case.

You may not have noticed, but "reality" is not digital, it is analog, and in its infinite variety it does not fit neatly into the pigeonholes humans like to create to classify it.

I ultimately loved studying the law because it does illuminate this point and the study of law is the study of arguing A is closer to B than to C, where B won the last case and C lost it. The practice of law at the appellate level is doing this same thing.

For anyone to say "follow the law" -- especially at the Supreme Court level -- shows either a lack of understanding or a willful disregard of that fact for political posturing.

Posted by: RealCalGal | May 5, 2009 1:35 PM | Report abuse

Oh please. If you have empathy for everybody, you have empathy for nobody? It just doesn't work like that.

Empathy is the ability to see things from another person's point of view and to understand their feelings. That understanding does not necessarily lead to a specific outcome.

Posted by: fletc3her | May 6, 2009 12:12 AM | Report abuse

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