Following Supreme Court Justice David Souter’s announcement that he planned to retire, conservatives have attacked and mocked President Obama’s statement that he is seeking a replacement who has “empathy” for “the daily realities of people’s lives.” “I’ll give you empathy. Empathize right on your behind!” bellowed RNC Chairman Michael Steele last Friday.
Now, former Attorney General Alberto Gonzales is getting in on the act. Appearing on NPR’s Tell Me More yesterday, Gonzales claimed that he is “worried” that judges with empathy would make “decisions based on what they think makes them feel good”:
GONZALES: I do worry a little bit, well, I worry, I worry about about justices on the court making decisions based on what they think makes them feel good. I don’t think it’s fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good. In essence what you’re saying, I think, is that I’m going to, I don’t care what the law says, I’m going to come out, I’m going to pursue an outcome that I think is fair and just. I’m going to rewrite the law. And I think that’s dangerous.
Slate’s Dahlia Lithwick skewered the ridiculousness of “the Republican war on empathy” this past Monday, noting that “When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.” Lithwick points out that in their attack on empathy, the GOP is basically arguing for judicial “solipsism“:
Obama may be wrong that empathy is the single most important quality a jurist can possess. But his Republican detractors cannot possibly be right, or even wise, in suggesting that a judge who listens only to herself is preferable to a judge who both listens to others and also considers her impact on others.
Now, if the GOP really wants to run out on a rail anyone with empathy or anyone who values it, far be it from me to object. Democrats will be more than happy to feel their pain. But to the extent that the debate over empathy may shape every Supreme Court discussion we are going to have this summer, let’s just be clear that the opposite of empathy isn’t rigor. It’s pretty close to solipsism, or the certain conviction that everything you’ll ever need to know about judging you learned from your own fine self.
Gonzales is not in a strong position to criticize others who supposedly “don’t care what the law says.” During his many years of service to President Bush, Gonzales earned a reputation for “dogged obedience to the President, which often has come at the cost of institutional independence and adherence to the rule of law.” While serving Bush, Gonzales advised him that the Geneva Conventions were “obsolete” and may have lied to Congress about the administration’s warrantless wiretapping program.
MICHEL MARTIN: I wanted to again cite the president’s words when he said, “I view the quality of empathy of understanding and identifying with people’s hopes and struggles as an essential quality for arriving at just decisions and outcomes.” I wanted to ask you, Attorney General Gonzales, do you think that, do you agree with that? Do think that’s appropriate?
GONZALES: Well, I think everyone wants to think that their government officials are kind, compassionate people. And I think someone having that kind of image is certainly helpful in a confirmation hearing. I do worry a little bit, well, I worry, I worry about about justices on the court making decisions based on what they think makes them feel good. I don’t think it’s fair to expect society to anticipate the outcome of a case based upon what makes a justice feel good. In essence what you’re saying, I think, is that I’m going to, I don’t care what the law says, I’m going to come out, I’m going to pursue an outcome that I think is fair and just. I’m going to rewrite the law. And I think that’s dangerous and so, again, I agree that we want our justices to be compassionate, to be kind people, but I think their job as a member of the court, quite frankly, is to apply the law and I think the notion that we worry about the outcome. You know, I served as a justice on the Supreme Court of Texas and sometimes I reached decisons and I didn’t like the outcome, but I felt that I had a duty to my oath of office to respect the words of the statute that I was interpreting.