A comment from Ran on the last post pointed out that the American law and common law tradition have always value empathy. The post points to juries as a case in point.
The founders also appear to be aware that different courts served different purposes. The founders gave different courts different forms to help them achieve their purpose. Criminal courts exist at a local level and have juries made up from the locality. Clearly, they wanted cases tried before a sympathetic ear.
The problem with empathetic courts is that they tend to arrive at wildly different conclusions depending on who is doing the empathy. So, the founders created a hierarchy of appeals courts with the Supreme Court at the top.
The Supreme Court has multiple judges and now jury.
The common courts evolved through the development of common law. The Supreme Court was established by the Constitution specifically for examining law in context of the Constitution. It is a thing of a totally different form.
Ran clearly is excited about the idea of empathetic judges.
Empathy is a welcome trait in a judge. The ideal judge takes pains to see issues from multiple perspectives. It is valuable for a judge to imagine how different people might feel about a case.
Samuel Alito's mentioning empathy as a positive trait was a good thing.
ScienceBlog leveled the charge of hypocrisy at conservatives for criticizing Obama's position on "empathetic judges," when they don't mind people mentioning empathy as a positive trait.
Claiming empathy as a trait is something different from making empathy an organizing principle of the court.
In the lead up to the nomination. Obama was positioning empathy as an organizing principle for the courts. When a person moves an idea from one context into another, it can take on a different characteristic.
When a local judge shows empathy for a plaintiff, the local judge makes a decision that affects only a small number of people. Other judges might make contradictory decisions when they empathize with other people affected by a trial.
The Supreme Court is not dealing with individual cases, but with very complex precedents that effect the entire system.
The highest quality that I would value in a Supreme Court justice is the ability to see the big puzzle and see how a decision will affect the system as a whole in the context of existing precedent and the Constitution.
The empathetic judge might make a ruling on empathy for the people in the case, and fail to realize the ramifications for all invovled.
I find it easier to feel empathy for individuals and small groups. Were I to employ my empathy in the service of God and King I would tend to make decisions that concentrated benefit on a few with the costs distributed to the many. This, of course, would lead to a wider disparity in income.
In my case, I would reject my own empathetic impulses because I realize that my empathetic impulses are likely to lead to injustice. It is possible that the empathy lobe of a Latina is better in tune with the cosmic oneness than a white male. I suspect that this is not the case.
I should also point out that the actual science of empathy has always been a bit murky. I know empathy is an established fact in Star Trek and Starship Troopers (oh man, that battle between the humans and bugs was something to behold). However, there really isn't a lot of solid evidence to suggest that there are people who can pop out of their body ant into another to feel what they are feeling.
Some of the people who I've met who believe they are empaths appear to be projecting emotions on others.
It is possible that empathy is simply a form of projection.
If, in our effort to build a Utopian court system founded on empathy, we accidentally appointed judges who were projecting their emotions on others; we might actually create a dystopia where courts issues destructive dictates based on false information.
I doubt that this debate about empath judges will really hang around very long. I think Obama was simply using a word the polled well.
To be fair, Sonya Sotomayor appears to be someone set on building a solid legal career as a justice. She appears to have left leaning sentiments but is not desirous of being an activist judge. It is likely that Obama was simply trying to find a word for a center left judge, but accidentally chose a word that is antithetically to traditional thinking on Constitutional law.