Sotomayor Hearings: The Empathy Debate

One of the more curious debates the Supreme Court confirmation hearings is drawing out is on the role of empathy in judging -- and it's worth watching if for no other reason than seeing typically glad-handing politicians trying to explain why empathy is suddenly a bad thing.

But with Sonia Sotomayor's confirmation exceedingly likely, it looks as if some senators are shifting their focus from whether Sotomayor is an empathetic judge to the role empathy plays in the president's process in choosing a judge -- and the role it may play in his future Supreme Court nominations.

In his opening statement Monday, Sen. Charles Grassley (R-Iowa) said: "President Obama said that he would nominate judges based on their ability to "empathize" in general and with certain groups in particular. This 'empathy' standard is troubling to me. In fact, I'm concerned that judging based on 'empathy' is really just legislating from the bench." In Tuesday's hearings, those concerns were echoed more pointedly by Arizona's Republican Sen. Jon Kyl, who had a spirited back-and-forth with Sotomayor over whether all of her opinions on the bench had a legal basis.

After Sotomayor's reply -- that she applied law and not feelings to facts -- Kyl said: "I raised this issue about the president's interpretation, because he clearly is going to seek nominees to this court and other courts that he's comfortable with and that would imply who have some commonality with his view of the law in judging. It's a concept that I also disagree with."

Judges having empathy, though, is not a problem. Judges are people, and the legal system tends to deal with people in times of crisis. Frankly, I'd be more concerned with a judge who claimed she felt nothing at all than with a judge who bases her decisions on the law, but still manages to drum up some human emotions about the people in front of her.