“‘Empathy’ is just the latest in a string of concepts designed to suggest that we can talk intelligibly about Supreme Court appointments in politically neutral terms. ‘Judicial restraint,’ ‘minimalism,’ ‘character,’ ‘precedent,’ ‘respecting the text’: like empathy, they matter, but like empathy, they are ultimately Hamlet without the Prince,” writes Christopher Eisgruber at the ACS Blog.
So what is missing from the discussion? According to Eisgruber, the discussion needs to shift from empathy to judicial philosophy.
“Obama believes–rightly, I think–that we should want a Supreme Court justice with a very different judicial philosophy,” writes Eisgruber.
“Until we admit what kind of questions really matter to assessing the career of a Supreme Court justice, our public debates about Supreme Court nominations will continue to be a kind of charade. It is numbing to imagine confirmation hearings focused on whether some distinguished lawyer is sufficiently empathetic. President Obama is himself a first-rate constitutional lawyer, and I suspect he knows this. It would be a gift to the country if, at some point in his presidency, he were to say so.”
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