Barack Obama famously says that a key quality he wants in a Supreme Court justice is “empathy.” As many commentators have observed, “empathy” is really a cover for lawlessness. But it’s actually worse than that, because empathy, as that term is used by Obama, is inherently selective.
Does Obama mean that his nominee will have empathy for the unborn? Well, no. He doesn’t have in mind that kind of empathy. How about empathy for taxpayers and small business owners? No, that isn’t exactly the right sort of empathy either.
Obama’s favorite example of the right kind of empathy is Lily Ledbetter. As Paul has pointed out, Lily Ledbetter was a liar with a lousy case that was properly barred by the statute of limitations. What “empathy” is at work here? Empathy with unions and, perhaps even more important, the people who profit more than anyone else when lousy cases are kept alive in the courts–plaintiffs’ lawyers, among the largest contributors to the Democratic Party. What Barack Obama means by an “empathetic” judge is one who has his or her thumb on the scale on behalf of politically favored groups. This is the opposite of the traditional view that a judge should be neutral, i.e., have equal empathy for all litigants.
There is a parallel here to the use of foreign law as precedent by some liberal judges. Did those judges look for guidance to the laws of Muslim countries when they ruled in Lawrence v. Texas that there is a constitutional right to sodomy? Of course not. That isn’t the sort of “foreign law” they have in mind. Reference to foreign law, like empathy, is inherently selective, since laws in various countries conflict, and is really a cover for a judge’s imposition of his own political preferences or for resolving an issue favorably to a politically favored group.