Stuart Taylor’s latest column—“Should Justice Be Driven By ‘Empathy’?” offers some sound insights on the Obama “empathy” standard, including:
Rather than equal empathy for all, some of [President Obama’s statements] 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?
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.
Taylor also develops a pragmatic argument “to be wary of the ‘empathy’ criterion”: “decisions by justices (as well as legislators) who thought that they were helping the poor and the powerless have often had the unintended consequence of hurting a great many poor and powerless people in the long run.”