Elena Kagan: Would she embody empathy as a Supreme Court justice?

Silence can be telling. Look no further than the remarks President Obama made this morning on the qualities that will make Elena Kagan an outstanding Supreme Court justice. Those that you would expect to hear from any president – “independence,” “integrity,” “fair-mindedness” – were all there.

Missing, however, was the quality that Mr. Obama last year called “an essential ingredient for arriving at just decisions.” That quality is empathy, a word the president has used to call attention to the limits of the written law in difficult cases and to the powerful role experience can play in deciding them.

Obama first praised the importance of judicial empathy during the nomination hearings of Chief Justice John Roberts. Then the junior senator from Illinois, he was prompted by Mr. Roberts’s opening statement, which attempted to defuse speculation about how his personal politics might color his decisions by likening the work of a judge to that of a baseball umpire.

“Umpires don’t make the rules,” Roberts announced, “they apply them.”

Judge Richard Posner, a Reagan appointee and perhaps the most celebrated mind on the appellate bench, said that neither Roberts nor “any other knowledgeable person” believes that the rules Supreme Court justices apply “are given to them the way rules of baseball are given to umpires.” Obama certainly did not. However, he did grant that “95 percent” of the cases that come before the court could be settled by “basic precepts” that any skilled judge adheres to, including respect for precedent, judicial modesty, and impartiality.

That leaves 5 percent, the “truly difficult” cases where a justice has to resolve some ambiguity in the law and cannot rely on “basic precepts” alone. When confronted with such cases, justices have often looked beyond the law to the lessons of experience.

Obama himself has approvingly cited Oliver Wendell Holmes’s famous dictum, “The life of the law has not been logic; it has been experience.” What Holmes meant is that, from the vantage point of history, the development of the law is not a matter of some mathematical theorem slowly and inexorably yielding its logical conclusion. Rather, it is the fitful work of human hands, of the men and women who create and interpret the law struggling to adjust it to the evolving imperatives of everyday life.

This is not pretty work.

It certainly lacks the elegance and analytical certainty of a mathematical proof, so it is not surprising that many people regard experience as too vague and unreliable to be of proper use to a judge. Yet justices like James Wilson, Benjamin Cardozo, and Sandra Day O’Connor, in addition to Holmes, have all pointed to experience as providing the kind of wisdom a judge must rely upon in cases where the written law falls short.

In fact, Justice O’Connor has gone so far as to express her belief that “At the end of the day, a wise old man and a wise old woman reach the same judgment.”

The key word here is “old,” for it highlights O’Connor’s faith in the experience that comes with age, and the wisdom it provides for.

Obama puts his faith in the type of experience that comes from empathizing with others, particularly those whose lives are different from our own. Empathy, as the president defines it, is not simply “a call to sympathy or charity,” it is “something more demanding, a call to stand in somebody else’s shoes and see through their eyes.”

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