“What’s an empathetic judge to do?”

Conn Carroll /

Heritage fellow Robert Alt writes in U.S. News:

My late constitutional law professor once offered the following hypothetical about a fishing dispute that made its way to court. On one side were Native Americans; on the other, environmentalists. After a pregnant pause, he mused: “What’s a liberal to do?” Were he to teach the class today, he might well have asked, “What’s an empathetic judge to do?”

As this hypothetical illustrates, empathy, the factor by which President Obama claims that he selects his judicial nominees, is highly subjective, and provides little direction for judges. In some cases, all of the parties are sympathetic. In other cases, none are. In still other cases, the law may be unambiguously on the side of a party who is less sympathetic.

If empathy is the guiding principle, how is a judge to decide these cases? And how do we separate empathy from personal bias? (more…)