Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn’t mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
And, remarkably enough, John Yoo is one of the foot soldiers in the Global War On Empathy, in his new role as a opinion columnist at the Philadelphia Inquirer:
In his 2005 confirmation hearings, Roberts compared judges to neutral umpires in a baseball game. Sen. Obama did not vote to confirm Roberts or Alito, but now proposes to appoint a Great Empathizer who will call balls and strikes with a strike zone that depends on the sex, race, and social and economic background of the players. Nothing could be more damaging to the fairness of the game, or to the idea of a rule of law that is blind to the identity of the parties before it.
Here’s hoping that this war is administered with the same ruthlessness as the Global War On Terror. I say we start by replacing those outdated judicial confirmation hearings with several sessions of waterboarding. There’s no way we’ll really know what nominees think about Roe v. Wade until we’ve subjected them to extreme interrogation.