Bench Memos

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Another Misguided Defense of Obama’s “Empathy” Standard


Like the Washington Post’s Ruth Marcus last week, Slate’s Dahlia Lithwick offers a misguided defense of President Obama’s so-called “empathy” standard for judges—and a misguided attack on critics of Obama’s standard.

Even more so than Marcus, Lithwick obscures the various statements by Obama for which “empathy” has come to stand as a shorthand summary (even if a shorthand that is overly favorable to Obama).  As I discussed in this essay from over a year ago:

In explaining his vote against [Chief Justice] Roberts, Obama opined that deciding the “truly difficult” cases requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.” No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: “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 criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

These were not off-the-cuff remarks by Obama.  They were part of his carefully prepared statements.

From Lithwick’s account, the reader would learn only of “Obama’s repeated claim that he seeks ‘empathy’ in a replacement for Justice Souter.”  Lithwick asserts:

[Empathy] 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.

But Obama’s own language shows that he is seeking judges who will favor particular classes of people and that he does believe that resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy” can and should be outcome-determinative in some cases—what he calls the “truly difficult” cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn’t yield the result that Obama really wants.

One lesson that critics of the Obama standard should draw from Lithwick’s attack is that they should be careful to go beyond using “empathy” as a shorthand summary and should look for opportunities to quote more fully Obama’s indefensible statements on judging.

Tags: Whelan


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