What matters on the Supreme Court is those 5 percent of cases that are truly difficult... In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or... whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" -- and to all others -- not to mention the constitutional command to provide all persons "the equal protection of the laws."

Conservative Edward Whelan, head of the Ethics and Public Policy Center, recently wrote in National Review Online's Bench Memos that "Obama's own language shows that he is seeking judges who will favor particular classes of people" in "what he calls the 'truly difficult' cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn't yield the result that Obama really wants."

Ruth Marcus rejected such criticisms in her May 6 Washington Post column as an "absurd caricature" of Obama's meaning. The president's point, Marcus argued, is that "all judges are guided to some extent, consciously or unknowingly, by their life experience" -- not that they should make legal rulings based on "the sympathy evoked by one party or the other."

Professor Orin Kerr of George Washington University Law School has posted a nuanced analysis on the Volokh Conspiracy blog that I find persuasive. "We need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking," Kerr wrote. "Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama's view of the Supreme Court and the role of 'empathy.'"

As Kerr details, Obama comes close to suggesting that he wants his justices to side with the "the powerless" against "the powerful" in the large number of close cases that pit individuals against big corporations, employees against employers, criminal defendants against cops, and the like.

Indeed, Obama accused then-Judge Samuel Alito of doing the converse, in voting against his Supreme Court nomination in 2006. Obama said that Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state."

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.

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.

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

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).

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.

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?

His "empathy" is governed by reality. 

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.