Opinion Pieces Respond To Obama's Call For 'Empathy' In Supreme Court Justice

Two newspapers recently published opinion pieces responding to President Obama's comments on the need for "empathy" in candidates to replace retiring Supreme Court Justice David Souter. Summaries appear below.

~ Ellen Goodman, Boston Globe: When discussing Souter's replacement, Obama said he will seek a nominee "'who understands that justice isn't about some abstract theory. ... It is also about how our laws affect the daily realities of people's lives,'" Globe columnist Goodman writes in an opinion piece. According to Goodman, Obama's emphasis on the need for judicial "empathy" has sparked outrage among a "phalanx of horrified conservatives" who claim that "empathy is just a code word for the sentimental liberal bias in favor of underdogs over the Constitution." However, she continues, "let us remember that empathy is not sympathy. It doesn't require that we take sides. Nor is it an emotional shortcut that upends all legal reasoning to declare a winner." According to Goodman, empathy "is rather the ability to imaginatively enter into the experience of others." She writes that the "capacity to recognize another person's reality is not just liberal," adding that empathy "doesn't trump reason, it informs reason." Goodman writes, "The truth is that we want judges who 'get it,'" adding that the "myth of justice as a matter of pure objective reasoning that could be meted out by a computer is just that, a myth" (Goodman, Boston Globe, 5/22).

~ Mike Rosen, Denver Post: Although Obama's emphasis on empathy might seem "[c]ompassionate and seductive" to some, his stance "represents a radical and dangerous departure from traditional American jurisprudence," radio host Rosen writes in a Post opinion piece. Rosen writes, "When empathetic judges rule on their feelings, they are exceeding their authority," adding that the "role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president." According to Rosen, the courts "are a co-equal branch of government, not a superior branch," and judges should not "rule on what they think the law ought to be" because that would be "government by a presumptuous, unelected judiciary." Rosen continues that "judges are referees, not rule makers" because they are "not there to empathize with the fans or the players. They represent the rule book, and they aren't authorized to … make it 'fairer.'" According to Rosen, the "dispute between conservatives and liberals on judicial activism is philosophical and irreconcilable." He concludes that Senate confirmation hearings for Obama's nominee "should make for an interesting debate on these principles" (Rosen, Denver Post, 5/22).


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