Commentary Magazine


Empathy Isn’t Really Empathy, You See

Give Ruth Marcus credit: she realizes that the president got into some hot water by suggesting ”empathy” is a primary consideration in selecting a Supreme Court judge. The president didn’t actually mean that he wants a Supreme Court justice who harbors sympathy toward one side or the other  — because that would be wrong (wink, wink). No, he’s looking for someone with experience  which will “inform” the judge’s thinking, you see. So, she says, Justice Powell would have come out differently in  the Bowers v. Hardwick sodomy case if he had known some same-sex couples.

Let’s stipulate that the president has no problem expressing himself and does not lack for vocabulary. So he could have said he was looking for “life experience to inform the justice’s thinking” if that’s what he meant. But even taking Marcus’ interpretation at face value, we don’t get away from the central problem. If Marcus is right that Powell would have ruled differently had he known gay people, that would mean his interpretation of the case would  have been “informed” by bias,  albeit friendly bias, toward the litigants. And that’s exactly the problem. One’s degree of empathy or chumminess with the litigants, or people like them,  should have no bearing on the cases before the justice.

Otherwise, one would have to excuse a justice who had lots of gay friends and felt oodles of empathy toward them because she could not impartially evaluate disputes involving gay rights issues. That surely can’t be right. We expect her to ignore those relationships and look to the meaning of the Constitution, the statutes before her, and the precedent from prior decisions. We are, in this instance, trying to decide what the Constitution means not whether democratically elected legislators should pass laws protecting gays from discrimination.

Marcus is trying her best to tap dance around the premise which is plainly animating the Obama justice search. He wants “empathy” to guide the justice in reaching outcomes which favor the down-and-out, minorities, women, employees, and criminal defendants. And if you doubt that, go back and look at every confirmation hearing over the last couple of decades. Democrats railed against  judges who had written decisions which ruled against these parties. The nominees were therefore tagged as ”insensitive” because they did not find a way to conform the law around a favorable outcome for these groups.

That’s what’s going on here. If honest, Democrats would own up to it and stop apologizing for the president’s refreshingly candid admission of what he is up to.