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Specter's comments are really odd, but Leahy's do make sense in context. Right now all nine members of the Court were previously sitting on a US Court of Appeals. This is actually a historical oddity, and there is good reason to feel that people coming from other areas of the law wouldn't be a bad idea. However, I would stress other areas of the law.

As for empathy, I don't think it's a zero sum thing at all. Having empathy for one group doesn't mean you have less for another. In my experience it's often quite the contrary. Having empathy for one group means you don't blindly support another group, but surely that's a good thing.

The context is important. Different people may have different ideas about what these characteristics mean.

My worst suspicion is that some mean additional consideration should be given to the interests of some people.

The role of the SCOTUS is to decide matters of law, not matters of fact. They do not examine witnesses, determine the facts of a case, or weigh the value of evidence. The Court does not decide if the defendant is guilty or not, it decides whether the lower courts acted within the scope and confines of the Constitution.
A lawyer "arguing" a case before the Court is not playing to a jury. He presents previous court rulings and statutes relevant to his position on whether or not rulings by a lower court were within the law.
Empathy, sympathy, or identifying with those "outside" our society should have no bearing on a Justices' suitability to interpret the Constitution.

Jaycee, you're right for the most part about there role, but that's not always the case due to the Fourteenth Amendment. Since it guarantees equal protection under the law, the effects of law are a constitutional matter. This is what gives you cases like Brown v. Board of Education. In that sense, empathy to a certain degree, as in understanding a person's or group's situation, does become a matter of constitutionality.

Vanity Fair Recommends Anita Hill for Supreme Court. That would have done it for me unless Janeane Garofolo makes herself available!

What difference does it make who the Demo-Rat operative is! Previous legal "scholars" on the court found the right to kill unborn innocent children in the Constitution. The also said yes to taking our property to turn over to developers to increase tax revenues to government. Five justices who, obviously, minored in "climate science" decided in 2007 that CO2 is a "pollutant."

There are many more decisions as, or more diaturbing as the above mentioned, so it appears it doesn't matter which liberal replaces the liberals that gave the above idiotic decisons. Okay, so Kennedy is a bi-polar, who occassionally guess right!

Specter, a lawyer and former Philadelphia district attorney, must be losing his mind. A nonlawyer sitting on the highest court in the land?* Doug

Nope! It appears that you lack the Constitutional history or knowledge that anybody [ ie ..citizen of the United States of age] can sit on the Court and render judgement on legal Constitutional issues.

Do you really believe that the Founders of the United States wrote in the Constitution that one must be a member of the Bar or highly train by establishment types or unelected rulers?

"All lawyers are equal, except some "State" lawyers are more equal than other lawyers" * People's Court of Nazi Germary

Andrew,

The question of empathy is an interesting point for discussion.

In my view, empathy can't be used to justify new and liberal interpretations of the constitution.

I'll give two examples. The first has to do with the most grievous offense in our nation's history: slavery.

To our national shame, slavery was tacitly recognized and condoned in our constitution. It was not explicitly prohibited until the addition of the 13th amendment to the constitution in 1865.

Even had a Supreme Court prior to the adoption of that amendment had empathy for the millions of human beings held in slavery, it could not rule the institution of slavery to be unconstitutional.

Lincoln's emancipation proclamation, which abolished slavery in states that were in rebellion against the United States, was executed by presidential order, as an act of "military necessity," or language to that effect. Lincoln himself did not believe he had the constitutional authority to prohibit slavery in parts of the country where there was no "rebellion" and therefore no "military necessity."

The second example is capital punishment. Here again, the justices may have sufficient empathy to want to do away with it, but that doesn't trump long-held acceptance of the constitutionality of capital punishment within certain limitations. John Paul Stevens basically has said he'd like to do away with it but has no constitutional grounds to support his personal preference.

There may be some examples to counter my argument, and I'd like to hear them. But, overall, I would caution anyone against overemphasizing the value of empathy in constitutional interpretation.

Senators Specter and Leahy have lost their politically pandering minds in my opinion. I watched them both yesterday morning and was in awe of their nonsense.

Dad, your first example is completely irrelevant. I'm arguing that in light of the Fourteenth Amendment empathy is a necessary ingredient for judicial review because it requires that citizens have equal protection under the law. That did not exist in the time of slavery. As for capital punishment, the constitutional arguments against it have in recent years generally been based on claims that it is unequally applied, again the Fourteenth Amendment argument. So far the Supreme Court has not bought those arguments, but if unequivocal evidence of inherent bias did exist in handing out death sentences (which I doubt would or could happen) then the rulings might change.

"Senators Specter and Leahy have lost their politically pandering minds in my opinion."

Ha, I think the problem with Specter is that his mind doesn't know how to pander anymore. He spent all his time telling the PA Democratic primary voters how much he's not a good Democrat.

It seems to me there have been more capital punishment cases lately dealing with age and mental capacity issues. Also, defining what's cruel and unusual punishment.

Determining equal protection under the law doesn't require empathy. It requires analysis.

The age and mental capacity issues do not have anything to do with whether capital punishment itself is unconstitutional, only about when it can be applied. Stevens has found no constitutional basis to end capital punishment, but has found such for limiting its application.

If empathy is defined as being aware of the thoughts, feelings and experiences of others, then it does help one understand how the law is affecting someone and if the law is giving them more or less protection vis-a-vis someone else. No one said it should be the only thing a judge relies on, but it seems a valid input into their decisions, even if just in those cases, and they do exist, where the correct legal solution is extremely unclear.

What I think is important, and judges I've spoken with reflect seriously on this, is their awareness of the gravity of issues they deal with. They do have an appreciation of how legal decisions affect the lives of people who come to court. That's one reason I think it's better that someone have served on a lower court bench before being appointed to a supreme court seat -- he or she has gained a realization of how his or her decisions impact real people.

Nevertheless, this never should lead a judge to treat one group or class of people differently from another. Instead, judges should be sensitive to the effect of their decisions on everyone. After all, they set precedents that will apply to future cases where the principles of law may be similar but the individual circumstances are completely different.

If you're back to the question of whether they should have non-judicial experience, the fact that you think it's better for someone to serve on a lower court bench doesn't mean Leahy's statements are wrong. You could believe that it's good for a justice to have that experience, but that doesn't mean you want all nine to have the same experience. If someone came from another background, you'd still have eight who came from a Court of Appeals, showing that such experience is important. Right now we have nine justices, six of whom went to law school at Harvard, two at Yale, and all of whom previously served on a Court of Appeals, and most of whom have been on that bench for a very long time. The experience is very similar despite very divergent views, and I think there's nothing too strange about wanting one of nine to have a resume you can distinguish from the others.

I don't think a candidate has to come from a federal court of appeals.

It could be from a federal district court, or a state supreme court. It could be someone who was a trial court judge earlier in his or her career and then gained some other kind of professional experience.

As you note, similarity of education and public service hasn't made this supreme court very unified in its legal outlook.

But I wouldn't mind a Carolina law grad on the court.

The justice who came from the most humble background, Clarence Thomas, doesn't seem to get much credit from liberals for his ability to empathize with minorities, or the poor, in single parents, all of which he knows a lot about from life experience.

Well, Thomas is one of the Yalies. And yes, Thomas has views that are very atypical of someone from his background. My point is that if similarity of education doesn't make them have a similar outlook, then it's not so important that they have that identical experience. You see the senators said "not just a judge" or "more than wear a black robe," they didn't say "instead of judicial experience." It sounds a lot like they're saying the same thing you are about how they could come from lower courts or state courts.

Of course, the president makes the nomination, not Patrick Leahy and certainly not Arlen Specter. For his first selection, anticipating maybe two more during his first term, I say Obama plays it safe on credentials and picks someone with a solid record on the bench somewhere. It still may be a woman or minority -- probably -- but all the more reason to go for a person who has a fairly conventional legal background.

Mr. Obama's believe that Mr. Justice Souter's replacement should have empathy for average people sounds a lot like the questions that our Chief Justice fielded during his confirmation when asked if he would take up for the little guy. His response was exactly correct: all those that come before him will have equal standing, regardless of their background, etc.

Indeed, judges wear black robes for a reason - to show that they are impartial. Lady Justice is blindfolded while holding scales because she does not care who wins, but determines the outcome based on the merits.

The idea that a justice should decide a case based on anything but the law is also certainly at odds with the oath that supreme court justices take:

"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God."

The left has always disliked the idea that we are a country of laws, not of men and very much would like to do something about that. When that day comes, and I feel certain that with the mob we have now ruling Washington it will come, we are all in very, very serious trouble.

In my view, empathy can't be used to justify new and liberal interpretations of the constitution* Doug

I assume that you have forgot about the "empathy" use by George Bush in his first term. Does the term "Compassive Conservatism" ring a Bell and his liberal interpretations of the constitution with federal funded religious faith base groups?

"What I think is important, and judges I've spoken with reflect seriously on this, is their awareness of the gravity of issues they deal with. They do have an appreciation of how legal decisions affect the lives of people who come to court."

This is actually exactly the same thing Ruth Marcus said in her column in the Washington Post today, agreeing with Obama about "empathy. " I think if you read more in depth of what Obama said besides that word, you'd see he was saying about he same thing you were in that statement.

I'm not as impressed as you by the Ruth Marcus piece.

She writes: "Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent."

And then the rest of the column is BUT.

It amounts to, the justices also should be guided by their personal sympathies.

She faults John Roberts' baseball umpire analogy and cites Barack Obama as saying "this isn't sport."

I doubt Roberts was really making light of his court's work. It think he was saying if a pitch is right down the middle, you have to call it a strike. It doesn't matter if you like the batter and wish he'd get on base. It doesn't matter if you think he's really overmatched by the pitcher and could use some help. It doesn't matter if his team just never seems to get a break.

I think the umpire analogy is imperfect. Calling the law is a lot tougher than calling pitches on the corner of the plate. That's why the court can take months to decide a case and an umpire has a fraction of a second to make a call. It's why nine justices can split 5-4 when each one is honestly trying to reach a fair outcome.

It's also why a president should nominate an experienced expert in the law with a proven record of fairness and intellectual integrity.