Posted 4:07 PM by steve

Dahlia Lithwick is either ignorant or deluding herself if she thinks that the 'empathy' Obama wants from a Supreme Court nominee is generic in nature and not slanted towards particular groups. Does she really think that Obama wants his nominee to take the feelings of 'bitter gun nuts' into account when deciding cases? How about taking into account the pressures of being 'hedge fund speculators'? Does she think that Obama wants his nominee to take into account "what it's like to be a young, teenaged mom"... and then rule against her?

Of course not. Empathy is a means to an end, not an end in of itself, it is a tool to construct a decision that Obama likes. Empathy is the bridge to span the gaps where the written law and precedent don't provide the support for the Court ruling in the way Obama wants them to rule.

And it's telling that in referring to his desire to have empathetic Justices, Obama cites only the constituencies - gays, the poor, black, disabled, teenage mothers - that comprise the Democratic voting bloc and not any of the demographics - rich, selfish, corrupt and bigoted - that tend to vote Republican.

'Empathy' to a Democrat is no different than 'original intent' and 'legislating from the bench' are code words for conservatives who want a particular outcome and don't particularly care about the way a Justice reaches a particular decision.

But Lithwick is right to criticize the GOP for focusing on empathy. As I said above, empathy is but a means to an end... and as a general rule, Americans care less about the process than the end result (in large part because process is harder concept for the public to grasp, it's a lot easier to understand the end result). In fact, I'd go so far as to say that if someone likes the outcome, they'll overlook whatever reservations they might have about the process by which that outcome was reached. Liberals don't care how the Supreme Court twisted things to outlaw bans on abortion and sodomy, all they cared about was the end result that gave women the right to abort their babies and gays the right to do whatever it is that they want to do to one another. Likewise, most Republicans didn't care when the Supreme Court went off the deep end when ruling against the Gore side back in 2000, all they cared about was that their guy won.

Because of this, the GOP needs to focus on the decisions that an Obama appointee is likely to make and how those decisions are going to negatively affect the voters whose support the GOP needs (just as Ted Kennedy, in going after Robert Bork, didn't bother arguing against Bork's judicial philosophy, he simply declared that Bork would bring back days of back alley abortions. It's all about the end result).

The GOP needs to claim that an Obama appointee is going to make us less safe by siding with terrorists over the American people and with criminals over police and the public. They need to argue that an Obama appointee is going to side with those who would restrict a parent's right to raise and educate their kids the way they'd like. The GOP needs to argue that an Obama appointee is going to cost jobs by siding with the government bureaucrats who intrude into private industry. They need to argue that an Obama appointee is going to make health care more expensive by siding with class action plaintiff attorneys over the doctors and pharmaceutical companies that provide our medical care. The GOP needs to argue that an Obama appointee who cites foreign law is out of touch with a mainstream America which is quite proud of our traditions.

And given the resistance of nominees to be specific, the GOP needs to put the nominee into a box where their refusal to answer the question can be taken as evidence of their bias. For example, they should ask the nominee whether he or she believes the safety of the American public is more important than the health and well being of a captured terrorist. Or, taking a page from Bernard Shaw, they ought to ask the nominee how he or she would react to school administrators looking for a contraband Advil strip searching their teenage daughter... or the legality of zero tolerance policies that result in kids being expelled from school for accidentally bringing a butter knife to school.

Granted, GOP opposition is going to fall short, absent some personal scandal, they're not going to be able to keep an Obama appointee off the bench. But there's still value in waging the fight: in going after an Obama appointee, the GOP has the chance to taint by association the Democrats who will vote to support the out-of-touch with mainstream America nominee... and, if the GOP played their cards right, they could receive some nice dividends this fall.

Of course, the GOP being the GOP, they're going to screw things up...