The “E” Word

President Obama used the word “empathy” when discussing what he looks for in a justice.

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people’s 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.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes.

And now that concept is being attacked.  Karl Rove says “empathy” is another word for judicial activism.

“Empathy” is the latest code word for liberal activism, for treating the Constitution as malleable clay to be kneaded and molded in whatever form justices want. It represents an expansive view of the judiciary in which courts create policy that couldn’t pass the legislative branch or, if it did, would generate voter backlash.”

But, as Glenn Greenwald writes, empathy wasn’t a problem when the concept was described by Samuel Alito during his confirmation hearing.

U.S. SENATOR TOM COBURN (R-OK): Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what’s important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

[…]

…when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position.

[…]

But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”

…When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

And “empathy” came up when George H. W. Bush nominated Clarence Thomas as well.

“I have followed this man’s career for some time, and he has excelled in everything that he has attempted. He is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor.”

There’s your “empathy.”

By: Alan

Alan Colmes is the publisher of Liberaland.