Obama’s infamous “empathy” test for judges:
we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.
has triggered a debate about the appropriate role for empathy in judicial decision-making, with conservatives arguing—rightly—that a judge’s overriding duty is to apply the law and let the chips fall where they may. (In a large number of cases that come before courts, things are not that simple, of course. The facts fall between legal categories and judges have to decide how to extend existing legal rules to cover them. This activity does come close to making “policy” as Sonia Sotomayor put it, though there are better and worse ways of devising those new rules, and judges should try to understand the effects of a new legal regime on all affected parties. Nevertheless, the idea that judges should only apply rather than make the law is an important aspirational fiction that we should not cast aside.)
“Empathy” is a code word, naturally, for privileging the usual suspects: the alleged victims of American classism, racism, sexism, and homophobia. (Glenn Greenwald notes that Samuel Alito paraded his empathy during his confirmation hearings.)
But why accept the conventional wisdom about who deserves empathy and who doesn’t. Here’s some hypothetical litigants and affected parties who probably wouldn’t meet the Obama empathy test but who should (regardless of their actual legal rights in a dispute):
–A landlord trying to evict a deadbeat tenant.
–A landlord trying to evict a tenant who has trashed his property.
–Taxpayers who will be forced to fund whatever new welfare entitlement or reprieve from responsibility that Obama wants to cook up for his “young teenage mom.”
–The children of future “young teenage moms” who will be produced at an even higher rate thanks to the new welfare entitlement.
–The victims and neighbors of some of those children of future welfare-enabled teenage moms.
–A business owner who can’t make a go of it thanks to onerous new taxes or regulations imposed to satisfy an empathy lobby.
–Chrysler’s secured creditors who assumed on the basis of settled law that they would have priority in bankruptcy court.
–Intending immigrants waiting patiently to enter the country legally, while the courts block deportations of illegal aliens.
–The casualties of affirmative action policies, as conservatives have long pointed out, including the successful New Haven firefighter test-takers.
The received wisdom about who the underdogs and overdogs are has been formed over decades by the left. But the assumption that underdogs—usually conventionally defined–occupy a special place of virtue is probably also a legacy of Christianity, as Nietzsche would have it, one that, combined with knee-jerk leftism, can have its downsides.