Obama's "empathy" standard for Supreme Court Justices

President Obama has stated that he will select judges, including Supreme Court Justices, who have what he considers the proper "empathy." In one statement, he said:

"We need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old -- and that's the criteria by which I'll be selecting my judges."

But is empathy a proper, or even useful, quality in a Supreme Court Justice? My answer is no. There are numerous problems with this "standard." First, with whom should the Justice empathize? Stuart Taylor Jr. notes in his excellent article in the National Journal that Obama's comments "stress special empathy for 'the powerless,' for single mothers, for employees as against employers, for criminal defendants, and the like. How does that square with the oath to do equal justice to the poor and to the rich?"

Obviously, Obama's desire that Justices demonstrate empathy for specific groups does not square with the oath to do equal justice to all without regard to their wealth or status.

Moreover, as Taylor notes: "In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups."

Second, Supreme Court cases frequently do not lend themselves to Obama's pat dichotomy between different groups, e.g. the rich and the poor, the powerful and the powerless.

Consider, for example, the DC gun control case decided last term, Heller v. District of Columbia. This case, decided by a 5-4 vote, was arguably the most contentious case of the term. Justice Breyer stated during oral argument that 80 briefs had been filed in the case. In other words, this was precisely the type of case where Obama claims that empathy is key.

But with whom should his hypothetical justice have empathized? Mr. Heller, a law-abiding citizen, who wanted to keep a handgun in his home in the crime-ridden District of Columbia? The District of Columbia, which possesses far more resources and power than Mr. Heller ("you can't fight city hall")? The burglar who might get shot if he breaks into the home of a gun owner? In this and many close cases decided by the Supreme Court, Obama's empathy criterion is simply irrelevant.

The Supreme Court decides many more difficult cases in Obama seems to realize. And in a great many of them, empathy is irrelevant, unless Obama simply wants Justices who will place their thumbs on one side of the scales of justice.

I'll take an impartial, conscientious Justice any day.