IS THERE A ROLE FOR EMPATHY IN THE LAW?

Before selecting Sonia Sotomayor as his nominee for the Supreme Court, President Obama said "We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

Liberals often make their case for empathy based on the perceived unfairness of outcomes such as differences in income, education and wealth. If the outcome isn't fair, then the rules should be 'bent' to assure a just outcome. Doubt about the fairness of a rule is sufficient to justify disregarding it. Walter Williams argues that fairness is a matter of process, not outcome: "Fairness ... must be settled by process questions such as: Were the rules unbiased and evenly applied? If so, [the] outcome is just and actions based on empathy would make it unjust."

Chief Justice John G. Roberts appeared to agree. In the opening remarks of his own confirmation hearings in 2005: ”Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”

When Senator Jon Kyl asked Supreme Court nominee Sonia Sotomayor about the role of empathy in judging, she also appeared to agree: "I can only explain what I think judges should do, which is [that] judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law. The judge applies the law to the facts before that judge."

I wish I believed her.