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By Bill Altreuter

Ann Althouse is a law professor at the University of Wisconsin. (According to her Wikipedia entry she worked for a while at Sullivan & Cromwell, and I can't help wondering if her time there overlapped with my time in the mailroom of that firm. Might have.) I only tend to read her when Lawyers, Guns and Money bring something to my attention-- she seems to strive for being provocative, in the manner of Camile Paglia, and that gets tiresome fast. On her Constitutional Law final this year she picked up on President Obama's remarks about the value of empathy in the make-up of a Supreme Court Justice, and asked:

"Where, in the cases that we studied, has it mattered whether a Justice followed abstract theories and dry text from case books instead of the things the President wants from a Supreme Court Justice? Choose specific opinions (majority, concurring, or dissenting) ... that illustrate the two types of judicial reasoning that the President contrasted....

"[L]ooking at the opinions you have written about, take a position on the importance of the quality of empathy in a Supreme Court Justice."
(The link is to the whole question.)

It seems to me that a good essay on this question would be an interesting thing to read; and I think that a really good essay would allow a professor to pretty accurately evaluate a student's grasp of constitutional law. I also think that a question like this would be tough to grade, and for that reason I'd hesitate to throw something like that on an exam I was giving. The Volokh Conspiracy (which I find more intellectually vigorous than Professor Althouse's site, notwithstanding its politics) has an interesting discussion on the question of whether it is a good question.

For what it is worth, it seems to me that conservatives are making far too much stew out of the empathy oyster. Of course empathy is an important quality in a judge. I use the word "temperament", but it is the same quality-- a good judge respects the importance of the matter before the court to the parties, and to society at large. That respect doesn't drive the outcome, but it will certainly inform the deliberative process. Only someone who has never been before a judge-- as a party or as an advocate-- could possibly think otherwise.

Full post as published by Outside Counsel on June 16, 2009 (boomark / email).