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Obama, Empathy and the Sotomayor Nomination

May 29, 2009

When President Obama made empathy the defining characteristic of his search for a judge to replace David Souter on the Supreme Court, reaction was generally divided into two camps: conservatives lamented it and liberals celebrated. But what did Obama mean by “empathy”? And how does it play a role in the highly analytical role of a judge in the American legal system? David Brooks has an intriguing piece in the New York Times exploring the role of empathy in our decision making process:

As Dan Kahan of Yale Law School has pointed out, many disputes come about because two judges look at the same situation and they have different perceptions about what the most consequential facts are. One judge, with one set of internal models, may look at a case and perceive that the humiliation suffered by a 13-year-old girl during a strip search in a school or airport is the most consequential fact of the case. Another judge, with another set of internal models, may perceive that the security of the school or airport is the most consequential fact. People elevate and savor facts that conform to their pre-existing sensitivities.

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