Together with Justice Sonia Sotomayor, Elena Kagan’s confirmation would represent a shift toward a younger, changing court, one that values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.
I understand the writers’ point, but I also think they have it backwards. Judicial liberals seek to increase the power of the courts in our politics and our culture. They don’t value “experiences outside the courtroom” as much as they want to put us all under the authority of courts.
Meantime, watch for this talk of “experiences outside the courtroom” and “personal interactions” to become a theme of Kagan supporters.
UPDATE: From a reader:
In this context I recommend revisiting John Hasnas’s article from the Wall Street Journal last year written around Sotomayor’s nomination. It won the Bastiat Prize for Journalism and uses Bastiat to question the wisdom of judges who use compassion and empathy — arguably closely analogous to a judge who “values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.”
“The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.
“Calling on judges to be compassionate or empathetic is in effect to ask them to undo this balance and favor the seen over the unseen. Paraphrasing Bastiat, if the difference between the bad judge and the good judge is that the bad judge focuses on the visible effects of his or her decisions while the good judge takes into account both the effects that can be seen and those that are unseen, then the compassionate, empathetic judge is very likely to be a bad judge.”