A Judge with "The Quality of Empathy"

Critics have heaped a good deal of derision on the President for saying he is looking for a judge empathy, a judge who understands life as the people know it. It's a legitimate line of attack. Thurgood Marshall was probably as streetwise a judge as we've seen in my lifetime (and a hero to me). And he certainly was a Man of the People--a boozing, skirt-chasing old hound who would have made a wonderful companion for a night out. He was also, and not incidentally, a fearless fighter for justice who succeeded by his courage and pluck; we were lucky to have him and we are forever in his debt. But as a judge, he was pretty mediocre. By contrast David Souter--bookish, private to the point of eccentricity, the last guy in the world you'd expect to see out on a carouse with Justice Marshall, turned out to be pretty good at the job.

But I think there is another way of looking at the empathy issue. Consider the notorious Jay Bybee, and in particular, that weird "defense" mounted by his "friends"--if that is what they are. The fulcrum of the Bybee defense seems to be that he was just a man of the law, and if somebody happened to get hurt in the process, why he can only be shocked and surprised. Some may call this principle; to others this will sound like a schizoid division of hand and heart. A somewhat different (but equally telling) example is the still-new chief Justice, John Roberts. I wouldn't say Roberts is a Bybee: quite the contrary, he seems to carry himself with an almost irreproachable deportment, marrying a formidable technical apparatus with an unbroken record of civility and good manners (Bullyboy Scalia, please copy). It's not that he really wants to hurt anybody; I wouldn't even call him "ruthless." It's just that he doesn't give a damn. Is it W.H.Auden who said that there is no more dangerous combination and a hard heart.

If the choice is between a Marshall (whom I love, but can't quite admire) and Roberts (who commands respect, but neither seeks nor invites affection), then I'd say we've got a pretty poor set of choices, indeed. Seems to me that we might want to look for something else: a decent mix of a complex of qualities--decency and civility, a capacity to listen, a trace of compassion. And, oh yes, technical skill beyond the ordinary in the working materials of the court. I don't know whether this is what Obama has in mind when he talks of empathy, but I certainly hope so.