Empathy for all people is an excellent qualification in a judge. However, it has to be for ALL people, not just those society has labeled as "disadvantaged" or "oppressed". President Obama disavows this idea in the quote the author selected. Obama, as an attorney and a constitutional scholar, is well aware of the foundations of the American legal system. However, rather than protect them as he swore to do, he prefers - indeed has spent his whole life trying - to use the legal system to rewrite the laws of the US rather than to legislate them. In his view, it is much too long and messy a process to do what is "right" through the channels our founders gave us in 3-way divided government. Let the courts do away with the rule of law and instead bias their decisions toward the "poor or African-American or gay or disabled or old." If we can stack the SCOTUS in our favor, we can not only fashion the law we like, but we can set it in the stone of common law precedent as well! Don't worry that the founders gave us a legislature to set policy - that's an outmoded idea! Let's let the SCOTUS decide what policy is - like they did in Roe v Wade. Let's use made-up constitutional concepts to strike down laws we don't like. Let's ignore codified law and do what is "right" instead (we're much smarter than those plebian senators and members of Congress!)

Obama's perspective is the first step away from our democratic republic to an aristocracy. When those the Constitution entrusts with its own protection decide that their "hearts" are smarter than the wisdom of 220 years of constitutional governance, there is no protecting the other branches from its power. That is then the end of America.

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Once again, a great piece.  I always wonder why I don't read more of them..

 How about life, liberty and the pursuit of happiness as a criteria instead of empathy?  

Scalia, Thomas, Roberts, and Alito already possess an excess of empathy for the privileged, for the wealthy, and for big business. God forbid that a new justice should have empathy for the rest of us!

Two guys liberals usually say they love as jurists re William O. Douglas and Justice Holmes.  Two more cold hearted bastards you will not meet.

If course empathy matters little, even if the law is "unfair" to one of the parties (isn't it always?)  If the constitution leads us to an "unfair" decision against the disadvantaged, it's up to Congress to create new law to address the imbalance.  The worst thing a court can do is to render an invalid opinion, which would leave the law flawed.

What is empathy for one is jail for another.  But what is legally valid for one will be legally valid for another.  Tyrannical decisions are based on empathy, juridcal decisions are rooted in  law.  Enter the Tyrant.

Steve:  Don't you consider yourself "priveledged"?  Do you think that perhaps you are 'underpriveledged' and therefore deserve someone else's property courtesy of judicial fiat?

Stuart Taylor would be an excellent choice for Supreme Court justice.

 Mr Taylor comes from that school of thought that sees the law as a dry, preserved, sacred text. It is handed down to us by that special group: legislators, who are presumably as pure as the driven snow in their deliberations, handing down only dry, preserved, sacred text which judges better be loathe to alter. If such were the case - having these high-minded individuals writing the laws, and judges merely stamping their approval on the laws before them - then I'd see things that way, as well.  We'd hardly need the judges in the first place.

But neither our laws nor our legislators are free from petty, distracting influences, and I suggest that a vigorous court system has a right and a responsibility to correct and improve upon the laws before them for review. Perhaps "heavy racial preferences" were wayward in their definition, if not their good intent. A wise judiciary could correct such a law by making it work better for everyone. Past injustices must be addressed: racism and prejudices still exist, Mr Taylor. But I will acknowledge that there is more than one path to use to achieve justice. One way is to have sincere, honorable lawmakers who have nothing but Americans best interests in their hearts. Another is to have judges who work in a kind of perfect balance with the legislative branch, pruning only the most necessary twigs which could poke someone's eye out, sooner or later.

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The demonization of Alito, Thomas, Roberts and Scalia is disingenuous and hypocritical.   All the justices should make their decisions based on the law and nothing else.   Any time one of these justices decides in favor of business or the rich, the facts are thrown out the window and the baseless accusations fly.

Give me a justice who decides what's right based on the law - for some reason liberals can't live with that.

So many flaws, where to begin?

First off, descriptors such as HEAVY affirmative action and GENEROUS welfare payments show distinct negative bias against these groups.  I believe that part of Obama's perspective is that throughout the course of our history, a thumb has been on the scales against such groups, so a little counterbalance isn't a bad thing.  One problem with empathy with defendants is that the S.Ct. sets precedent for future cases, and is not just adjudicating an individual case.

"In addition, law-making is supposed to be mainly a democratic exercise driven by voters, not a judicial exercise driven by empathy for selected groups. Indeed, our laws as written already reflect the balance of interests -- of empathy, if you will -- that the democratic process has struck between the powerless, the powerful and other groups."

Law adjudication is not law making, and was intentionally protected against the majoritarian impulses of the legislative branch, which is often co-opted by money from big business and special interests.  I don't equate the legislative branch with empathy, but more with majority opinion (often hostile to minority groups/opinions) and special interests (read: money).

Why does Ginsburg have to be saying that girls and boys should be treated differently.  And maybe they should in certain situations.  What she is arguing is that the men can probably understand how a 13 year boy would react, but probably cannot put themselves int he place of a 13 year old girl.

A better example is probably abortion, sex discrimination, rape cases and probably even war powers, where I would expect a majority female court would arrive at a rather different jurisprudence.

The truth is that the law rarely constrains a judge from making a decision either way.  Studies have shown that a judge's socio-political positions correlate heavily with case outcomes.  As someone above noted, Scalia, Alito, Roberts and Thomas are all reliable votes for state powers, big business and lack of empathy for the little guy.  Since I'm of the opinion that those interests do a fine job of taking care of themselves, I fully support Obama's intention to get justice for the marginalized (who are lucky to get a case to such a level in any case).

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I believe that Justice Ginsburg adequately fulfills the whiner role on the Court. America deserves Justices who will decide cases on their merits and based on the records presented to them.

The Ledbetter case provide an excelent example of wacko-judicial activism. Congress clearly imposed a 180-day statute of limintations on claims -- for better or worse. What the 4-vote wacko activist wing wanted was for the court to extend the statute of limitations by fiat.

Yes, the 180-day statute of limitations was ridiculously short but CONGRESS HAD MADE IT. It was not the job of GInsburg et al to extend it.

So Ledbetter lost --- and CONGRESS extended the statute of limitations.

That's the way things are supposed to work.

Clearly, an understanding of what empathy actually is would aide this national discussion. Your example of Ginsburg might actually reveal a lack of emapthy for 13 year old boys rather than a "biased" empathy for 13 year old girls. Or neither.  Here is a description of empathy I wrote recently that I hope will add clarity to the discussion:

Empathy is not the same as Love: I've heard many understandings of love, let's take one. If love is the giving from our hearts without expectation, empathy is a quality of being fully present to another person, focusing on the other, which often opens our hearts to such giving.

Empathy is not Sympathy: Sympathy entails a quality of support that requires a degree of agreement with the other person's views. Empathy means we fully let in what the other expresses, without agreeing or disagreeing with the content of the expression. Empathy implies seeking to understand, not seeking agreement or disagreement.

Empathy is not “Niceness”: If by being nice, we mean polite "proper" behavior, empathy can often be the antithesis of "niceness". Empathy calls for our authenticity, that we acknowledge what is often kept hidden by the polite, nice world, bringing those uncomfortable issues in life to the forefront.

Empathy is not Passivity: Being empathetic does not mean I become a limp noodle without my own needs and expression, or indifferent to conflict. Empathy is an active process of presence, listening, observing and internally opening to someone other than our selves.

In fact, empathy moves us to the center of conflict. Human beings disagree, misunderstand, react and so forth. Our world is full of examples of this. Empathy works directly with this noble truth. By deeply understanding another, we can reduce misunderstanding, see clearly how our views differ, and build trust through the truly courageous act of letting another human being fully into our awareness and maybe even our hearts. It doesn't mean we agree or disagree, sympathize, lie down, or be polite; we simply give another the gift of our presence and understanding.

Empathy is exactly the opposite of naiveté, empathy ends naiveté. How? Because when we fully receive another person, seek to understand, the maximum amount of information is brought into the open. This doesn't mean everything is rosy and now we'll hold hands and sing Kumbaya together. It means we are now aware of another's needs giving us the maximum opportunity to act on accurate information and the deepest level of trust. What we have done is relieve ourselves of the naive idea that some problems are unsolvable, that violent disagreement is absolutely inevitable.

The great contemporary philosopher Ken Wilber commented that communication between human beings is nothing short of miraculous, that it's amazing we understand each other at all. The practice of empathy greatly magnifies the odds of true understanding. Just listen to the rhetoric from both sides of the congressional aisle or tune into a broadcast of Fox News and MSNBC and notice how severely polarized our country’s political stances have become today. What if we could create a bridge between these poles, would that not be quite substantial? Empathy says, “yes we can”.

Empathy is the meeting ground where the needs of all are acknowledged and understood.  Though empathy may seem like it is a selfless act, it is not. When I deeply understand another, it has been my experience time and again, that having been heard, the other person is now far more open to hearing and understanding me. Empathy gives me a much greater chance of bringing my own needs and values to actuality.

In a venue like the Supreme Court, how could having more understanding rather than less be harmful? Do we really want a  country that values ignorance more than understanding?

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As usual, Taylor cuts to the heart of the issue and presents readers with a clear analysis void of emotional impulses which have clouded the judgment of some others.

His "empathy" is governed by reality. 

 "Well, if Ginsburg's statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. "

No, it doesn't.  It means that her colleagues questioned whether or not a 13 year old girl was exaggerating her trauma because they didn't understand what it feels like to be going through the particular changes that girls bodies go through at that age, especially in a society that treats women's sexuality the way it does. Not to mention a world that is filled with all sorts of differing ideas about how and when and where a woman's body should be covered up, and where women are sexually assaulted everyday, and made to feel vulnerable and unsafe just walking down the street. That really has nothing to do with how teenage boys feel about their bodies, though one can only assume from the male judge's reactions that perhaps a teenage boy might not be as traumatized. No woman would hear about a woman of any age being strip searched anywhere and not get that it was traumatic violation of her privacy.  Only a man could say something like that.

But thanks for proving her point. 

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Nice article, and Tim nailed it in his comments. I don't recall seeing the word empathy in the Constitution. I think that's Congress's job. Our oh-so-smart Constitutional professor-turned president seems to have forgotten his oath of  office--to preserve, protect, and defend the Constitution--in favor of his own Chicago-style political pursuits. What a fraud this man is. PT Barnum, anyone? Steve Stone - I won't bother asking you to provide an example of how Messrs. Scalia, Thomas, Roberts, and Alito possess an excess of empathy for the privileged, the wealthy, and for big business, because, as a liberal, you live in a world void of facts and logic

I will bet good money his nominee will have zero empathy for the unborn.