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Obama’s Supreme Court Decision: The Law and Empathy

May 25, 2009

Stanley Fish at the New York Times has an excellent discussion about the notion of empathy in the law. This concept, described by the President as the most important quality his potential Supreme Court nominee could possess, is subject to varying legal interpretations. Giving full weight to both sides of the debate about Obama’s potential nominee –and the role of this characteristic in a proper jurisprudence–Fish provides as balanced an account of this controversy as any I have seen. Speaking about “empathy”, Fish says,

[i]t may not be that simple. Obama’s invocations of empathy combine a concern for the less advantaged with a theory of constitutional interpretation. Speaking to his choice to fill the seat soon to be vacated by Justice Souter, Obama said, “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That kind of judge, Obama explained, will have empathy: “I view the quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

The phrase “just decisions and outcomes” seems beyond reproach (who could object to it?), but many will hear it with suspicion and say, “Just outcomes would be nice and let’s hope we have some, but what courts should deliver is legal outcomes.” You might think that “legal” and “just” go together, and sometimes they do; but in the real world “just” and “legal” can come apart. A decision is just when it reflects an overarching vision of what is owed is to each man and woman. A decision is legal when it can be said to follow from established rules, statutes, precedents.

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One Comment leave one →
  1. May 25, 2009 8:30 am

    You have to remember that Obama always uses “nuanced” speech, another phrase for “code words” and”dogwhistles.” By “empathy” Obama really means “Minority” and preferably a multiple minority such as a Black Lesbian.

    He’s looking for an abortionist activists with a strong desire for racialist “social justice” and judicial activism.

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