Early appraisals by conservatives of Judge Stomayor have focused on the “empathy” thing. This is good and useful. But it is worth recalling that presidential candidate Obama stressed that “empathy” was rarely an appropriate resource for the deciding appellate judge. Even when he spoke directly about the Supreme Court’s docket, Obama opined that in maybe ninety-nine percent of cases his ideal justice could and should decide the matter by standard legal reasoning about conventional legal materials. These days that means one case a year decided on “empathy.”
It seems to me, therefore, that we should be asking our senators to ascertain not only what “empathy” means to Judge Sotomayor. We should be asking them to ask her whether she agrees with President Obama that “empathy” will so very rarely influence her on the Supreme Court. If she does agree, we should then ask her how she would identify that one case a year where “empathy” is in play, and how she justifies that selection.