With the nomination of Judge Sonia Sotomayor by President Obama for the Supreme Court, the flurry of debate around questions of his singling out empathy as an essential quality for a Supreme Court Justice, has gone into high gear.
In a posting on the American Constitutional Society Blog, Empathetic Judges and the Rule of Law, DePaul law Professor Susan Bandes comments on the importance of differentiating between sympathy and empathy. She says that empathy, the ability to understand the perspective of another, is not extrinsic to the process of judicial decision making. But is a necessary attribute for making the difficult interpretative choices , especially in constitutional questions.
Life experiences and values help define what empathy judges will be able to bring to bear in making well-founded decisions. As she says, "Let's not get sidetracked, as we have in the past, by the notion that Supreme Court justices are mere technocrats who can simply apply the law without making value choices."
( "Hat tip" to Lenore Boehm of our staff )