"Sen. Orrin Hatch of Utah, speaking on This Week, warned that if a jurist were to show empathy, 'politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics.' In an opinion piece in the Washington Times warning that Obama is poised to be the 'first president to make lawlessness an explicit standard for Supreme Court Justices,' Wendy Long of the Judicial Confirmation Network saw empathy as a kind of temporary insanity that so distorts a jurist's vision as to make it difficult "to uphold the federal judicial oath to dispense justice impartially." Over on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering." And in a delicious Freudian slip, Sen. Jeff Sessions of Alabama snorted: 'I don't know what empathy means.'"I think that, cutting through the hysteria, what is basically in play here is a fear that Obama will choose an activist, liberal judge. I doubt he will, much as I would love to see that. Souter, a liberal leaning moderate judge will, in all likelihood, be replaced by another of that mold. But, in wake of two Bush administration appointees and a bench that had more viciously political 5:4 splits then had been seen at any point in its history, a moderate will merely maintain the status quo. What many Americans may not realize is that such political polarities as we have experienced in my time as a voter are not common in the Supreme Court.
Snatched from Slate, "Once More Without Feeling" by Dahlia Lithwick
They may also not realize that the most liberal and most senior member of SCOTUS, John Paul Stevens, was appointed by a Republican, Gerald Ford. Souter, another who votes with the "liberal bloc" was appointed by George Bush Senior. They are the last, I worry, of a kind of judge whose understanding of law was not dominated by the party of the president appointing them.
What has happened to the courts? When did judicial activism become unspeakable? It is clearly meant to be one of those balances between branches of government, and yet, Chief Justice Roberts sees his role in the system as merely that of "a referee"*. If he wanted that job, he should have stayed out of the appellate courts. When Justice Stevens says, "Including myself every judge who’s been appointed to the court since Lewis Powell** has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That’s bound to have an effect on the court." He is not exaggerating. The court does not need a moderate- it needs a progressive, for the sake of balance, because neither of my favorites, Stevens or Ginsburg, are young. Empathy is a good start, but it's not enough. Conviction and the strength of will and character to wield the incredible power of the bench for the right reasons is.
So, empathy doesn't sound so bad to you now, does it, Wendy Long.
* His words, not mine.
**1971, President Nixon