In fact, this piece by Ruth Marcus is the first that I have found. You can learn a lot about an argument by how well, or poorly, it is defended by its supporters. While I am certainly biased here, I am not very impressed. First, Marcus spends a grand total of four paragraphs defending it. She spends nearly that many setting the readers up to understand why the argument is so dangerous. The defense itself is full of rhetoric with little in solid evidence to back it up.
Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That's not possible -- not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his -- or her -- life experiences, conception of the role of the courts, and, as Obama put it, "broader vision of what America should be."
Possessing the "empathy to recognize" should not determine the outcome of a case, but it should inform the judge's approach. All judges are guided to some extent, consciously or unknowingly, by their life experience. The late Justice Lewis Powell, the deciding vote in Bowers v. Hardwick, the 1986 case upholding Georgia's sodomy law, told fellow justices -- and even a gay law clerk that very term -- that he had "never met a homosexual." Would the outcome of Bowers -- an outcome Powell regretted within a few months -- have been different if the justice had known men and women in same-sex relationships?
When Bowers was overruled in 2003, the majority opinion by Justice Anthony Kennedy was infused with a greater understanding that anti-sodomy laws "seek to control a personal relationship." You got the sense that Kennedy actually knew people in such relationships.And empathy runs both ways. In 2007, when the court rejected Lilly Ledbetter's pay discrimination lawsuit because she had waited too long to complain about her lower salary, the five-justice majority seemed moved by concern for employers unable to defend themselves against discrimination that allegedly occurred years earlier.
The allusion to the Ledbetter case is absurd. The law was clear. Ledbetter had waited too long to file her complaint. No amount of empathy is supposed to supercede the law. By Marcus' determination, a judge is supposed to ignore the law so that they can have empathy to understand why someone took too long to file their complaint.
As for the sodomy case, if Powell was interpreting the law then empathy should have played no role. If Powell decided the case simply because he is a homophobe then he shouldn't have been admitted to the bench to begin with. Either way, whether or not he actually knew any gay folks should have played absolutely no role in deciding the case.
Worse than all this is that empathy is a very theoretical concept. Most people have empathy, and most people have life experiences. Both Sam Alito and John Roberts, two judges then Senator Obama voted against, are married and with children. They have homes, cars, and bills. They both have lots of friends, and many of those friends are outside the profession of law. Exactly, how is their empathy lacking? It's lacking in that they don't have empathy for the people that President Obama wants them to have empathy for.
Judges are human not superhuman. The same Judge Powell that didn't know any gays likely knew a lot of other types of people and would have had empathy for them. So what? Most Supreme Court Justices are on the bench as long as thirty years. They will hear thousands of cases. There will be those that they will relate to and others they won't. None of it is supposed to influence either way how they decide the case at hand. That's because their decision is supposed to be decided entirely on their interpretation of the Constitution and nothing else.
In fact, it's a total insult to all those that have served on the Supreme Court for President Obama to say that empathy is an important factor. It implies that those now on the Supreme Court are not empathetic. In fact, it isn't that they aren't empathetic, but that they aren't empathetic ENOUGH to the groups that President Obama wants to draw empathy to.