The dreaded ‘e’ word

THE DREADED ‘E’ WORD…. When Justice David Souter announced his retirement from the Supreme Court, President Obama described his ideal justice as a person of intelligence, excellence, integrity, and empathy. “I will seek someone who understands that justice isn’t about some abstract legal theory or a footnote in a casebook,” the president said. “It is also about how our laws affect the daily realities of people’s lives.”

Almost immediately, “empathy” became a terribly scary word to conservatives, who said it was “code” for “judicial activism.” (The irony is, phrases like “judicial activism” and “strict constructionist” are themselves code words for the right.) It led the erudite chairman of the Republican National Committee, Michael Steele, to tell a national radio audience last week, “Crazy nonsense empathetic! I’ll give you empathy. Empathize right on your behind!”

Dahlia Lithwick argued last night that the “Republican war on empathy has started to border on the deranged.” The problem, it seems, is that the right simply doesn’t understand the meaning of the word, at least as it’s applied in this context.

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. […]

[A]s used by the president, the word empathy does not strike me as “code” for anything…. Empathy means knowing what you don’t know and questioning why you think you know what you do…. Empathy means being impartial toward all litigants without being blind to the consequences of your decisions. You can send up such concerns as gooey judicial sentimentalism, unmoored from any fixed legal principle. Or you can admit that judging requires acts of judgment beyond the mechanical application of law to facts and that it’s best for judges to know when the mechanical act of deciding cases gives way to ideology and personal preference. Empathy isn’t sloppy sentiment. It’s not ideology. It’s just a check against the smug certainty that everyone else is sloppy and sentimental while you yourself are a flawless constitutional microcomputer.

Well said.

I’d just add that the discussion surrounding this high court vacancy went from zero to annoying with surprising speed. From the right, which hasn’t launched a meaningful campaign against a Supreme Court nominee in more than a generation, we’ve heard a series of increasingly useless talking points about filibusters, the horror of “policy” being “made” at the appellate level, and the nightmare of “empathy.”

I can’t wait to see how much worse this gets once there’s an actual nominee.