Slate.com columnist Dahlia Lithwick recently penned an article entitled "Once More, Without Feeling: The GOP's Misguided and Confused Campaign Against Judicial Empathy."  As its zippy title indicates, Ms. Lithwick intends to respond to the Republican party's table-pounding regarding Obama's choice to select "empathetic" judges for open Federal positions.

Lithwick quotes Obama's words in The Audacity of Hope, where he described empathy as "a call to stand in somebody else's shoes and see through their eyes."  To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel?" before acting.

Thus, Ms. Lithwick argues:

Ms. Lithwick makes an intuitively plausible case for judicial empathy.  She then selectively quotes "big tent" Republicans desparately trying to make points with the true conservative base like Michael Steele.  Recently, Mr. Steele announced, "Crazy nonsense empathetic! I'll give you empathy. Empathize right on your behind!"  Humorous, especially given that this was apparently on Good Morning America, but certainly not vaunted, ironic intellectual rhetoric like Ms. Lithwick's carefully selected prose.

So let's take Obama at his word.  Let's say that he truly believes that judicial empathy involves thinking about the law from more than one perspective, and that judicial empathy is not a mere code-word for crazed liberal activism.  And let's be real here.  I am positive that 'judicial empathy' is nothing but a code-word for radicals on the bench.  Just ask Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals, caught on YouTube cackling "delightedly" that the appeals courts make policy.  But we'll leave that to the side for the moment.

Instead, we'll do something rather dangerous, which I certainly do not advocate in any normal circumstance: we'll take a politician at his word.  Is it a great idea to bring in judges who ask, "How would this make me feel?" whenever they make a ruling?

Frankly, no, it's not.  Even on the best possible reading, judicial empathy is a bad idea.  In a typical asbestos case, a judge would have to ask himself how it would make the plaintiff feel when he dismissed her claim for failure to prove that the defendant produced the asbestos that allegedly caused her mesothelioma.  That would likely make the plaintiff feel terrible.  She is positive that the defendant company produced the asbestos that put her on her deathbed, after all.   And even if that defendant didn't produce the exact product that put her in that position, surely that defendant produced some asbestos that hurt someone.

But wait--a truly empathetic judge would have to consider how it would make the defendant feel to dismiss the plaintiff's claim on summary judgment.  But the defendant is just a big, impersonal company.  The defendant company doesn't feel anything at all.  Should the judge perhaps ponder the emotions of the company's president, stockholders, or board of directors?  How about the company's lineworkers?  Those guys would probably feel great, but are their feelings as persuasive as the feelings of the plaintiff lying prone in the ICU?

Any way the judge considers the problem, he is going to come out empathetically preferring tort plaintiffs over corporate defendants, which means that this "empathy" standard is nothing but a shortcut to anti-business bias in the courtroom.  And has anyone but me noticed that this empathy standard completely leaves out any consideration of proof, or of what the law actually says?  You know, lawyer stuff?

Even in the criminal context, it's really not a good idea to install empathetic judges.  On one hand, let's consider how the victim's family will feel if we cut loose a criminal defendant on a technicality.  On the other hand, how would the criminal defendant feel about the violation of his Constitutional rights?  Should we also consider the fact that the victim was "asking for it," and that the defendant had a troubled upbringing?  The point is: none of this navel-gazing matters.  None of it matters!  The "feelings" of the participants are nothing more than a distraction from the black letter of the law.

By criminalizing certain behaviors, allowing civil causes of action, and writing the laws of civil and criminal procedure, the legislature decides what to do about how people feel.  Our judges are not meant to consider everyone's emotions at every little whipstitch.  The judiciary is there to apply the law's text to a given factual situation.  If the judge's decision hurts someone's feelings, the appropriate avenue of recourse is to change the law legislatively--not to hassle judges about how the people before them are going to react.

If we, as a society, decide that we want an "empathetic" system of laws--and by that, I mean pro-plaintiff, pro-big government, pro-criminals with sob stories, pro-victims' rights (but only the right kind of victims)--fair enough.  But we need to do it the right way: through the legislature.  We need to elect people to enact these kinds of laws, not let Obama and his Democratic Congressional lackeys appoint judicial lapdogs who will enforce this statist worldview whether we have voted for it or not.