For Conservatives, “Empathy” is Code for “Activist”
Justice Harry Blackmun
A lot has been said about Obama’s desire to appoint a supreme court justice with “empathy.” In a recent interview with CSPAN Obama described such a figure as:
I said earlier that I thought empathy was an important quality, and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you, but you have to be able to stand in somebody’s else shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.
A classic example of someone who embodies the above is the former Justice Harry Blackmun. Most noted for his majority opinion in Roe v. Wade, Blackmun’s prior experience as general counsel for the Mayo Clinic proved critical in framing the bedrock abortion opinion not so much in terms of a woman’s right to an abortion as much as a physician’s duty to provide medical care. Blackmun’s high regard for the medical profession allowed the court to couch its decision in less controversial terms and established the fundamental rule that where a mother’s life is at stake, no matter how late into the pregnancy, the state cannot restrict the right to abortion. In an opinion decided by the court on the same day as Roe, Blackmun wrote about a doctor’s decision to perform an abortion in Doe v. Bolton as one that:
…may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman’s age - relevant to the well-being of the patient.
So it makes sense that conservatives gearing up for the impending nomination fight are concerned with Obama’s desire to put someone on the bench with empathy. If one presumes that practical experience increases one’s “empathy” — however one may define it — someone who can decide real-world problems based on his or her previous experiences, just as Blackmun did in Roe, represents the sort of “activist” approach to deciding cases directly at odds with the right-wing “originalist” approach that narrowly relies on deciding cases based on what the framers of the constitution would have preferred.
It seems absurd to criticize Obama for wanting to appoint a justice with empathy. After all, you’d want your doctor or neighbor to be empathetic so why not a justice on the court? But inside the beltway and legal ivory tower communities, Obama’s use of the term was construed as part of an on-going ideological battle on how to interpret the constitution.
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