Newsweek's Dahlia Lithwick and law professor Sonja West wrote for Slate.com about how empathy is a much better quality than diversity in Supreme Court justices: "If we can't in fact have a court that looks like America, we should seek a court that feels for America." But this push grew really weird when they suggested retiring Justice John Paul Stevens was somehow a Latina:
Perhaps they've also imagined him having the ability to take the lead away from Jennifer Lopez in the movie Selena. Lithwick and West concocted the idea that the media threw a fit against the "empathy" principle, somehow confusing the media and their "war on empathy" with objections from the Republican minority:
He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner 'wise Latina woman' when the case called for it, and we are all better for it.
It's been almost a year since President Obama made his ill-fated remark that the quality he was seeking in a replacement for former Justice David Souter was "empathy." For anyone who may have repressed the subsequent unpleasantness, here's a brief recap: 1) Obama repurposed his words from The Audacity of Hope suggesting that empathy means one should "stand in somebody else's shoes and see through their eyes," and then 2) everybody went freakin' crazy.
The resulting media war on empathy, of course, completely twisted the word to mean that Obama wanted a justice who would use the Constitution as a decorative coaster and decide cases based on his or her feelings and the weather. Somewhere in the whole empathy brouhaha, Obama and the Democrats backed away from the e-word. Justice Sotomayor even renounced it at her confirmation hearings. Which may be why Obama failed to use it at all in his comments honoring Stevens' retirement today.
Instead, Obama suggested a judge is supposed to identify the "powerful interest" and rule against it in favor of the "ordinary citizen."