President Obama praised Elena Kagan for her intellect and passion, but he only hinted at the quality he earlier deemed an essential ingredient in a Supreme Court justice: empathy.
New Haven, Conn.
Silence can be telling. Look no further than the remarks President Obama made this morning on the qualities that will make Elena Kagan an outstanding Supreme Court justice. Those that you would expect to hear from any president – “independence,” “integrity,” “fair-mindedness” – were all there.
Missing, however, was the quality that Mr. Obama last year called “an essential ingredient for arriving at just decisions.” That quality is empathy, a word the president has used to call attention to the limits of the written law in difficult cases and to the powerful role experience can play in deciding them.
Obama first praised the importance of judicial empathy during the nomination hearings of Chief Justice John Roberts. Then the junior senator from Illinois, he was prompted by Mr. Roberts’s opening statement, which attempted to defuse speculation about how his personal politics might color his decisions by likening the work of a judge to that of a baseball umpire.
“Umpires don’t make the rules,” Roberts announced, “they apply them.”
Judge Richard Posner, a Reagan appointee and perhaps the most celebrated mind on the appellate bench, said that neither Roberts nor “any other knowledgeable person” believes that the rules Supreme Court justices apply “are given to them the way rules of baseball are given to umpires.” Obama certainly did not. However, he did grant that “95 percent” of the cases that come before the court could be settled by “basic precepts” that any skilled judge adheres to, including respect for precedent, judicial modesty, and impartiality.
That leaves 5 percent, the “truly difficult” cases where a justice has to resolve some ambiguity in the law and cannot rely on “basic precepts” alone. When confronted with such cases, justices have often looked beyond the law to the lessons of experience.
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