Elena Kagan: Would she embody empathy as a Supreme Court justice?
President Obama praised Elena Kagan for her intellect and passion, but he only hinted at the quality he earlier deemed an essential ingredient in a Supreme Court justice: empathy.
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As applied to the Supreme Court, the practice of empathy shapes how a justice resolves disputes involving affirmative action, abortion, gun rights, campaign finance reform, and other “truly difficult” cases where the law presents more than one option for adjudication, or no clear option at all. Moreover, like O’Connor, the president suggests that the experience of practicing empathy, of seeing the world through the eyes of other people, lends itself to a shared wisdom, one in which we are “forced beyond our limited vision” in order “to find common ground.”Skip to next paragraph
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Not everyone is so confident, most notably the president’s first nominee to the Supreme Court bench, Sonia Sotomayor. Her hope that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life” came in response to O’Connor’s views. It reflects Justice Sotomayor’s skepticism that either the perspective of age or the practice of empathy can ever take us far beyond the limits of our own experience.
This is not to say that experience is irrelevant to deciding the “truly difficult” cases; rather, experience ought to be measured across the bench. The need is not for the special experience of a single justice, but for nine justices with a variety of life experiences that, together, best reflect the diversity of the American people.
The president sees things differently. He places enormous faith in the experience of seeing the world through the eyes of others, a faith he came by as the son of so many different worlds. His struggle to understand his own convoluted identity convinced him that striving for empathy not only makes us more humane and tolerant, it also imparts a special kind of wisdom that is uniquely suited to living in and deciding law for a country as rich and diverse as our own.
Senate Republicans are not convinced. They made clear in the Sotomayor hearings that they regard empathy as not synonymous with wisdom, but with partial justice and judicial activism. Their objections help to explain why President Obama’s faith in empathy went unmentioned this time around.
Yet the President did gesture to that faith at one point, this morning, in his invocation of Justice Thurgood Marshall. Kagan was a law clerk for the civil rights icon in one of his final years on the bench, and she has said that the most important thing he taught her had nothing to do with the technical application of the law. Rather, it was the recognition that “behind law there are stories – stories of people’s lives as shaped by law, stories of people’s lives as might be changed by law.”
The willingness to listen to the stories of people's lives, the wisdom to see how law might change them, and the courage to act on that knowledge are all what make empathy such an abiding virtue and a valuable addition to the court.
Today, President Obama only hinted at this lesson. Let us hope a Justice Kagan embodies it.
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