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Should Appointment to the Supreme Court Hinge on Empathy?

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The United States Constitution is silent as to the qualifications of Supreme Court justices. An illiterate ninety year old citizen of North Korea suffering from senile dementia and on life support could, consistently with the Constitution, be nominated by the President and approved with the advice and consent of the U.S. Senate. Fortunately, that seems quite unlikely to happen. In any event, there being none, this article is not about the Constitutional qualifications of Supreme Court justices.

Recently, President Obama indicated that in deciding upon a nominee to replace Mr. Justice Souter, he will look most closely at those who are unusually empathetic, probably toward whatever groups he has in mind. I assume that's what he means, because most everyone is empathetic toward someone or some group, but most have more empathy toward some than toward others. I assume that he will not look for someone with great empathy toward the Klu Klux Klan or even Tea Party proponents.

President Obama is being urged to lean more toward "empathy" than experience by some of the higher-ups in his party.

Some of the senators who will conduct confirmation hearings for Justice David Souter's replacement think it's time for a nominee who hasn't served on the federal appeals court. For all nine of the current justices, the appeals court was a final stepping stone to the Supreme Court.

"I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge," said Vermont Sen. Patrick Leahy, chairman of the Senate Judiciary Committee.

It appears that President Obama feels much the same way:

He has indicated that he wants a candidate who has a less traditional résumé, in order to bring diversity to a high court now filled entirely by former appellate court judges.

As White House press secretary Robert Gibbs put it, Obama is looking for "somebody who understands how being a judge affects Americans' everyday lives."

Not really coming to grips with the idea of "empathy," Oliver Willis in an article in Huffington Post and probably elsewhere, opined that President Obama should nominate a "liberal," more than likely meaning "leftist," and with sufficient Democrats in the Senate, his appointee will be approved.

We need someone who is solid as a rock on civil rights, right to choice, limits on corporate power, and an overall progressive viewpoint on the Constitution, our laws, and the overall role the court has to play.

My gut says that President Obama understands all this, and the last 100 days have led me to believe that at the end of the day his choice will fit the bill.

Thomas Sowell, writing here, here  and elsewhere, disagrees.

That President Obama has made "empathy" with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Before attempting to discuss the impact of "empathy," and left-right orientation versus judicial experience, it seems useful to attempt to define the rather different jobs of lawyers, of academic types, of Federal appellate court judges and of Supreme Court justices. Surely, we need to have some idea of what these folks are expected to do in order to decide what their qualifications should be.

Much of the work done by the Supreme Court is quite similar to the work done by other Federal appellate courts. The main difference is that the Supreme Court can overturn the decisions of lower Federal (and sometimes, state) courts, while only the Congress and the President, acting together, can nullify a decision of the Supreme Court. The Supreme Court can overrule its own past decisions, but rarely does so directly. Unlike decisions of the lower courts, Supreme Court decisions become, at least for a while, the law of the land.  Although a decision by, for example, the Court of Appeals for the Fifth Circuit, becomes the law of the land in so far as all lower Federal courts within the Fifth Circuit are concerned, it does not bind the Federal courts in the other circuits. One of the fundamental reasons for the Supreme Court to take a case is a split among the Federal circuits; when it does so, what it says, provided it is not dictum (extraneous language unnecessary to its decision), binds the Federal courts in all circuits. The Supreme Court thus can have far greater impact on the United States as a whole than can any other court in the land.

About Dan Miller

  • M a rk

    Our task is nothing less than consciously changing human nature.

  • M ar k

    Rog, I’ll need some time to respond to your #199. I don’t want to simply quote Hegel.

    Hopefully, I get something together before the conversation goes cold.

  • roger nowosielski


    I agree about #201 and (partly) disagree.
    “Human nature” is an elusive concept and overused. And if it is subject to changing, it’s only indirectly, through enhanced consciousness.

    So yes, we do have THAT responsibility, just as we have a personal responsibility with respect to our acquaintances and friends to point out to them what we perceive as “their wrongs,” for that sake. Whether it changes “human nature” is another story and I don’t have to delve into that aspect. Suffice it to say that retrogression is always a possibility; at the same time, it is also true that we are (and become) what we behold.

    This is of course more true of the individuals – when dealing with a case by case basis – than of a collective. The problem with “mass consciousness” is that it must acquire a sufficient momentum in order to ensure against sliding back – which is to say, it must become the prevalent “ideology” if it’s to persevere.

  • Cindy


    Thanks Mark.

    Yes, war won’t ‘work’, that part I’d know you meant. Better way of putting it: I was trying to understand whether Marx was wrong in an academic sense–whether his idea would not result in his outcome (even say, were one to agree with class war). I know he supports liberation war and not the other way around. I’m trying to figure out where he made sense–versus where he was just wrong (as in withering away of the state–to me that is just wrong).

    I have another Marxist in reserve to help me. She’ll be able to re-explain it 42 times until it sinks in. Plus…

    I think I found an online class to study Marx. I’ll be needing it if I ever want to talk to Marxists about anything. Besides, I am getting picked on now by 16-year-olds because apparently they learn all about Marxism in AP Gov class (sigh).

    BTW Andrej has a new video: It’s a panel on the Wobblies/Zapatista book. You might like it. It’s addressing ideas about what is needed in a movement now in the U.S. Anarchism & Marxism Part 1. I think it’s divided into 9 small parts or so.

    Arundhati Roy — I love that. :-)

  • M a rk

    I have no doubt that the contradictions inherent in capitalist production will result in a general crisis that working people will find unacceptable. I hope that we can avoid the whole ‘dictatorship of the proletariat’ thing. My job as an anarchist is to start protesting that state of affairs now. The withering away of the state is not optional.

  • Cindy

    Our task is nothing less than consciously changing human nature.

    Yes. That’s how I see it too–conscious change. Thus, education has been my focus forever.

  • Cindy

    Education and human development.

  • Cindy

    I think this very short quote, says pretty much everything:

    “There is no way to peace — peace is the way” — A. J. Muste

  • Clavos


    Your thread has devolved (descended?) into anarchy…:>)

  • roger nowosielski

    Not if I can help it.
    BTW, Clavos, could I direct my next two articles to your attention – not just for editing but feedback?


  • Cindy

    Sometimes, I just adore you Clav. :-)

  • roger nowosielski

    You may well have to, because you’re running out of alliances, and quickly.

  • Cindy

    But I would say ‘evolved’ Clav.

    John Stewart conceptualizes evolution itself as having reached the level of complexity that it will be driven consciously. (Even if he were wrong, it still works on a social level, to me.)

    John Stewart:

    It is as if evolution is a developmental process. Just as a human embryo is organized to develop through a number of stages to produce an adult, evolution tends to produce a particular sequence of outcomes of increasing complexity. Initially, evolution moves in this direction of its own accord. However, at a particular point evolution will continue to advance only if certain conditions are met: organisms must emerge that awaken to the possibility that they are living in the midst of a developmental process; they must realize that the continued success of the process depends on them; and they must commit to actively moving the process forward.

    This relates, to me, very much to what Mark said:

    “Our task is nothing less than consciously changing human nature.”

    I see Anarchism as a way of embracing that ‘evolutionary’ change.

    So, there is my case. Dan(Miller)’s article has evolved into anarchy. :-)

  • Dan(Miller)

    Clav (#209) and Cindy (#213) — Yep. I’m waiting for some pirate jokes.


  • roger nowosielski

    That means, of course, that Dan Miller has resigned himself to the fact that his thread is going nowhere and that it had, “devolved” is the right word, into trivia.

    Oh, well, the things humans won’t do to be liked.

  • Clavos

    Sometimes, I just adore you Clav. :-)

    Thank you, Cindy — unfortunately (for me), you’re in the minority.

  • Clavos

    BTW, Clavos, could I direct my next two articles to your attention – not just for editing but feedback?

    I’ll be glad to work with you on your pieces, Roger. Isn’t this a bit of an about face for you? I recall you saying not too long ago that you didn’t want me to touch your work.

  • Clavos

    But I would say ‘evolved’ Clav.

    Of course you would, Cindy. :>)

  • Clavos

    I’m waiting for some pirate jokes.

    Hate to keep a man waiting:

    A pirate walks into a bar and the bartender says, “Hey, I haven’t seen you in a while. What happened, you look terrible!”
    “What do you mean?” the pirate replies, “I’m fine.”
    The bartender says, “But what about that wooden leg? You didn’t have that before.”
    “Well,” says the pirate, “We were in a battle at sea and a cannon ball hit my leg but the surgeon fixed me up, and I’m fine, really.”
    “Yeah,” says the bartender, “But what about that hook? Last time I saw you, you had both hands.”
    “Well,” says the pirate, “We were in another battle and we boarded the enemy ship. I was in a sword fight and my hand was cut off but the surgeon fixed me up with this hook, and I feel great, really.”
    “Oh,” says the bartender, “What about that eye patch? Last time you were in here you had both eyes.”
    “Well,” says the pirate, “One day when we were at sea, some birds were flying over the ship. I looked up, and one of them shat in my eye.”
    “So?” replied the bartender, “what happened? You couldn’t have lost an eye just from some bird shit!”
    “Well,” says the pirate, “I really wasn’t used to the hook yet.”

  • roger nowosielski

    Clavos, #217.

    I’m certain you realize by now I’m temperamental. Character deficiency, no doubt, for which I can only apologize.

    I’d like to, however, to go with my better judgment, even if it means overlooking your propensity for sarcasm.

  • Cindy

    A dyslexic pirate walks into a bra.

  • Dan(Miller)

    Re # 215 — would someone please tell Roger that I solicited PIRATE jokes?


  • Franco

    95 – Glenn Contrarian

    “FYI, if you’d read my first reply to Dan’s article, you’d have seen me give kudos and compliments to him for the contents of the article. I guess you were too busy making a strawman out of me to consider that little fact.”

    False: I did see and read your comment complimenting Dan’s article. But that has absolutely nothing what so ever to do with my question to you in post #79 when you dodged the issue of empathy and talked about everthing else but.

    You used everything else said as the stawman to get out of addressing ‘empathy”, and your post 95 was just more horanging about everything else but ‘empaty” once again, which only confirms my origaal post #79. You still have not answered the question. Here it is again.

    Glenn, would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z?

  • Dan(Miller)

    An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, “empathy” is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.

    “Webster’s defines empathy as ‘the experiencing as one’s own the feelings of another.’ Obama, in The Audacity of Hope, described empathy as ‘a call to stand in somebody else’s shoes and see through their eyes.’ To Obama, empathy chiefly means applying a principle his mother taught him: asking, ‘How would that make you feel?’ before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.


    [E]mpathy—at least as Obama has used the word—decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: “Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision.”

    Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow’s suffering. That is the function of a very different branch of Government.

    Assume a statute stating, “any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith.” I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow’s personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to “experience as . . .[his] own the feelings of” such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.

    Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it — by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.

    Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to “do good” according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.