The New York Times reports this afternoon, based on remarks by President Obama in a C-SPAN interview today, that the president will soon announce his nominee to replace Justice Souter on the Supreme Court. The only candidate mentioned in the article is Seventh Circuit Judge Diane Wood, whom the president met with this week, but the report also indicates that another finalist — not identified — remains in the mix.

This excerpt from the Times report underscores the incoherence and perniciousness of Obama’s focus on “empathy”:

In discussing the quality of empathy, Mr. Obama often cites the case of Lily Ledbetter, a former Goodyear Tire supervisor who sued her employer for discrimination but was denied back pay after the Supreme Court ruled she failed to file her suit within the statute of limitations. He cited the case again in the interview, saying it is an example of how he wants judges to understand the law as “a practical matter.” Conservatives have viewed Mr. Obama’s remarks on the Ledbetter case and use of the word empathy as code for a liberal, activist judiciary with an anti-business bent. Mr. Obama seemed to be trying to counter that criticism in the interview, saying his emphasis on practicality “might cut the other way. “ “I want a judge who has a sense of how regulations might affect the businesses in a practical way,” he said.

Ed Whelan has written a lot at Bench Memos about the Ledbetter case (see, e.g., here and here). In his remarks today, Obama is suggesting that more empathy would have led the Court to ignore the statute of limitations. Got that? When George Bush ignores FISA’s statutory limits to protect American lives, that’s a violation of “the rule of law,” but when activist judges do it to save a discrimination claim, it is empathy worthy of promotion to the Supreme Court.

Obviously, it’s actually an invitation to judicial lawlessness. Yet, simultaneously, Obama absurdly claims such empathy might be helpful to businesses in dealing with the labyrinth of regulations. But what businesses need to conduct their affairs “in a practical way” is certainty: if the new rule of the road is to be that judges will decide which regulations get enforced and which don’t based on their subjective sense of result-oriented fairness, what we get is economic chaos and paralysis.

It’s also worth bearing in mind that the Ledbetter decision, a faithful reading of the applicable statute, resulted in congressional action to expand the ability of women to bring discrimination suits — thanks to some unseemly judicial politicking by Justice Ginsburg. I don’t like the statute, but at least it has democratic legitimacy and it can be changed or repealed if the people’s representatives see that it is not practical. If, on the other hand, the Court had ignored the law, we’d have illegitimacy to go along with the chaos — the justifiable sense that the Court’s role is to reward favored groups, not follow the law. It’s clear how that helps the favored groups, but how does it help the rest of us?