Commentary Magazine


“Empathy” Must Have Focus Group Tested Poorly

The president is off “empathy” as a requirement for a Supreme Court justice and is now talking about someone with a “a practical sense of how the world works.” This is vacuous nonsense, of course, for several reasons.

First, provided he is not naming a Martian anyone who has lived in America for 40 or 50 years, gone to law school and either taught law or served on the bench has some sense of how things “work.” It would be the strange bird indeed — a hermit from New Hampshire, perhaps — that had not experienced life in America.

Second, it tells us nothing about either the outcomes or the methodology the judge will employ. Is it “practical” to enact abortion on demand by judicial fiat or is it “practical” to let fifty state legislatures decide the issue? What is a “practical” interpretation of the the takings clause?

Third, does the “way the world works” include a recognition that we are a nation at war? Somehow that critical “life experience” never includes anyone with law enforcement, national security or military experience. We’ll see if the nominee has any appreciation of or views on the choices Obama must now make concerning everything from military tribunals to the status of Guantanamo alternatives like Bagram. It wouldn’t be very “practical” for a judge to dismiss out of hand the array of ”common sense” arrangements such as military tribunals which the Bush and now Obama administrations have employed.

And finally, this has nothing to do with the business of judging. The president regrettably never talks about the things judges are supposed to do — interpret the meaning of the Constitution and statutes. These are incidental, mere annoyances, in his vision. What’s key is to get to a “practical” result, which strangely enough coincides precisely with liberal policy goals.

We are on the verge of a Supreme Court nomination that will, I think, reveal more about the president than it will immediately impact the Court. Over time the justice will find her place on the Court. And we will see how she matches up to the intellectual heavyweights who insist upon fidelity to the text and meaning of the Constitution. But that will take time.

What will be immediately known is whether the president, who claims to be immersed in appellate court decisions of the potential nominees,  has sought out a justice who will respect her role, not as a super-advocate for the liberal agenda, but as a judge who seeks to get it “right” and actually believes there is a “right” answer in interpreting the Constitution and statutes before her. Did he find someone who demonstrated fidelity to the law as an appellate judge? Or did he select someone who will, at any cost, wheedle and connive to find a Constitutional hook for the Left’s agenda? I have my strong suspicions but we’ll know soon enough.