Stevens's Real Legacy
Lithwick, Dahlia, Newsweek
Byline: Dahlia Lithwick
Why the E word matters.
Just around this time last year, Justice David Souter announced his resignation from the U.S. Supreme Court and President Obama explained to the White House press corps that he was looking for a replacement who shared a fundamental trait of Souter's: empathy. "I will seek someone," said Obama, "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 lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." And then the president dropped the E bomb: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes."
You would have thought, from the shrieking that ensued, that the president was calling for Souter to be replaced by a drunk French bigamist. RNC Chairman Michael Steele, speaking on syndicated radio, immediately weighed in: "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!" Sen. Orrin Hatch of Utah, speaking on This Week, cautioned that if a jurist were to show empathy, "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law, not upon politics." And on Fox News, Sean Hannity warned that empathy is the first step toward "social engineering."
But the final nail in the old "empathy" coffin came when then-judge Sonia Sotomayor, on her second day of Senate testimony, explained that to the extent the president defined empathy as judging from the heart, she disagreed comp letely: "I wouldn't approach the issue of judging the way the president does," she testified. "Judges can't rely on what's in their heart?.?.?.?It's not the heart that compels conclusions in cases, it's the law." Asked later whether she would allow empathy to cloud her jurisprudence, she was unequivocal: "My record shows that at no point in time have I permitted my personal views or sympathies to influence the outcome of a case?.?.?.?In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result. …