GOP RECONSIDERS THE IMPORTANCE OF EMPATHY…. There was a tiresome, seemingly endless debate last year over judges and “empathy.” You may recall that President Obama vowed to seek justices who understand “that justice isn’t about some abstract legal theory or a footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives.”
And with that, the great “war on empathy” began. The right characterized empathy as “code” for “judicial activism.” RNC Chairman Michael Steele declared, “I’ll give you empathy. Empathize right on your behind!” Dahlia Lithwick noted that Republican criticism on this “started to border on the deranged.”
But at least the battle lines were clear. For the right, judges should be “calling balls and strikes,” in a dispassionate way. For a judge to consider personal outcomes, or how a ruling might affect personal circumstances, isn’t just wrong; it’s an outrageous scheme to tilt court rulings. The law is the law — its effects on people’s lives are irrelevant.
It’s what made Sen. John Cornyn’s (R-Texas) remarks yesterday a little confusing. The Republican senator told MSNBC that Elena Kagan “has not had any experience, both in a courtroom as a judge or as a practicing lawyer, to be able to be able to understand [the impact of the law on average everyday people]. She has been a legal academic at Harvard and worked here in Washington, DC. I’m happy to hear how she thinks those qualifications qualify her for the highest court, but certainly they don’t put her in touch with the impact of the law on average everyday citizens.”
On its face, the argument itself is dubious. It’s not as if Kagan has been locked up in an ivory tower throughout her professional life. But putting that aside, why in the world would John Cornyn care if a Supreme Court nominee can understand the impact of the law on average everyday people? What does that have to do with dispassionate analysis of the law?
In other words, what difference does it make to John Cornyn if a judicial nominee has empathy? As I recall, he and his far-right buddies spent two months last year arguing that such questions were fundamentally unreasonable.