1. My suspicion of “empathy” follows from a similar suspicion of having courts generally engaging in trade-offs, cost-benefit analysis, and other excursions into making policy. Both invite judges to become the Legislators of Last Resort, and not the interpreter of constitutional, statutory, or common law principles.

2. The only excuse for “empathy” I can think of is that one may need it to understand what is meant by terms like “cruel and unusual punishment,” “unreasonable search,” “due process,” or “equal protection.” I can imagine that a sense of what it’s like to be in someone else’s shoes could be useful in judging when rights embodied by those principles were violated.

That said, Hasnas’s warning of a visibility bias is well worth heeding.

Some senator needs to read John Hasnas’ brilliant op-ed (HT Manne) to SCOTUS nominee Sonia Sotomayor and ask for her reaction: As important as compassion and empathy are, one can have these feelings only for people that exist and that one knows about …

The deeper problem is that empathy is totally unprincipled. Why should a judge have more empathy for one plaintiff over another? How does one distinguish the case of the person fired because a plant closed without adequate warning from a person fired because they were Latina? Is one more deserving of empathy than the other? How much? Enough to change the balance?

BTW, I assume it’s a typo, but you have the nominee’s name spelled wrong.