The Magazine

The Problem with Judicial Empathy

What will constrain judges once they turn to their hearts for guidance?

Jun 8, 2009, Vol. 14, No. 36 • By TERRY EASTLAND
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It's unclear why empathy disappeared at the very moment you'd expect Obama to emphasize it. Perhaps he and his advisers decided that "empathy" and "what is in the judge's heart" suggests a degree of subjectivity in judging that Americans aren't yet ready to accept. "Experience" is a less loaded term. But for Obama it gets to the same thing. As he said standing by Sotomayor, the right kind of experiences will create "a sense of compassion" (read empathy) in a judge. Compassion, as Obama sees it, that will lead the judge to reach the right (which is to say the left) result.

Obama says he's prepared to fight for his nominee. And debate over Sotomayor could be illuminating. For starters, what about the shoddy work of her panel in Ricci and of Jose Cabranes's criticism of its opinion? And, more broadly, which issues in the courts today are so legally indeterminate that judges need to move outside the law and into their hearts to figure out how to decide them? What is to constrain them once they repair to their hearts for guidance? And how can a judge who agrees with Obama that a heartfelt jurisprudence could help "tilt the balance" in favor of "people who are struggling in this society" in good conscience take the judicial oath of office? That oath obligates them to do equal right unto the poor and the rich. And, finally, a constitutional question: Are the legislative and judicial powers different kinds of powers? Or are they essentially the same?

These questions are quite different from the ones usually raised in connection with the Supreme Court nominees of Republican presidents. And so is this one: How will the Republican Senate minority discharge its duty to advise and consent on the Supreme Court nominee of this Democratic president?

Terry Eastland is the publisher of THE WEEKLY STANDARD.