What's Empathy Got To Do With It?

Friday, May 8, AD 2009

Doug Kmiec has a rather bizarre article up at America entitled The Case For Empathy: Why a Much-Maligned Value Is a Crucial Qualification for the Supreme Court. If the article is any indication, I suppose we should be thankful Obama didn’t make any off-hand remarks suggesting ‘creativity’ or ‘imagination’ were traits he would look for in a potential Supreme Court justice, if only because it might have lead to more essays like this one. After some preliminary gushing about, you guessed it, empathy, Kmiec explains what an empathetic justice would accomplish:

To do this, it is possible that [Obama] will mine for legal talent in unusual places, but it is more likely he will attempt to find a nominee with appellate court experience whose skill set also shows the capability of challenging methods of interpretation that otherwise wouldn’t give empathy the time of day. If Obama succeeds even with this more limited challenge,he will have exploded the notion  that swapping out a Souter for a new, most likely younger and intellectually energetic, justice is without effect.

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11 Responses to What's Empathy Got To Do With It?

  • Nice job dismantling what is just a mess of a column. Kmiec manages to somehow sink further and further. It’s truly remarkable.

  • I assume that Kmiec believes all of this intellectual prostitution he is currently engaging in, repudiating wholesale intellectual positions he held throughout his adult life, will ultimately gain him a federal judgeship or some other plumb from the current administration. Trading self-respect for advancement is always a poor, not to say pathetic, bargain.

  • I think it’s time we simply stop paying attention to Mr. Kmiec. To call him a hack would be generous. Far too many words have been wasted on him already.

  • Don,

    I am not sure what Kmiec’s purpose is, and I would like to think he is not just angling for a spot on the federal bench. People do change their minds, and sometimes those changes are dramatic.

    That said, based on my (admittedly limited) observations of legal academia, Kmiec’s arguments are an embarrassment to the profession. I can’t imagine any of the professors I’ve had over the past three years writing this type of nonsense, regardless of their political persuasion. Kmiec should be extended some sympathy given that he is writing for a non-specialist audience, but even that is no excuse for the type of misstatements and shoddy argumentation on display here, particularly since these views are diametrically opposed to views he held less than two years ago.

  • Until he starts making the barest acknowledgment that he’s done a 180 on principles and views held until the Adventus Obamus, he’s not entitled to the benefit of any doubts.

    And I agree, John: this essay is absolute pablum. The principle of “empathy” is entirely situational and subjective. Take Heller: “Well, you know, Doug, I empathize with people who don’t have efficient police protection and private security forces guarding their gated suburban communities. Whose empathy is entitled to more weight in the law?”

    Oh, and I love how he refers to Obama’s record as a law professor without giving any examples to bolster his point. This essay is embarrassingly empty propaganda for Obama. Which is probably why America was so eager to publish it.

  • Where is all his talk of Natural Law!!! DO people recall in many of his Catholic Online articles and other places Kmiec would always put in several paragraphs that he believs the law should the Natural Law as seein the Declaration of Independence and esp Right to Life as being inaleiable

    Where is that here? Now it was nonsense to think that Obam would give us a Natural law judge in the first place and Kmiec never explined how it would happen

    But looking through this entire article where is the natural law theme.

    In fact as to SOuter , who was a huge postivist and did his thesis on Justice Holmes) there is no mention of that.

  • In reading through comments on another blog, I learned that Prof. Kmiec has Parkinson’s disease. Here is a link and some excerpts to an article he recently wrote about Parkinson’s and embryonic stem cell research:

    http://www.catholic.org/politics/story.php?id=32655

    Over time, however, all Parkinson’s patients know that after a short span the medication fails and we also know what that means. We have uncomfortably witnessed our future in the lives of longer suffering brothers and sisters…So you would think that when President Obama, for whom it was my privilege to campaign, gives permission for embryonic stem cell research that some say holds a Parkinson’s cure that I would be grateful and encouraged. Yet, I am not. While I believe the President’s desire to separate science and politics is well considered, there can be no separation from ethics,

    To avoid cooperating with an intrinsic evil, this trembling hand is not to take hold of any medicine or participate in any medical treatment advanced by research involving the destruction of a human embryo. Easier said than done – or by me, even written down. But then, in this Easter time we are reminded that we belong to a Church where the very son of God allowed himself to be put to death so that others might live.

    The article contains, naturally, some defenses of the Obama administration, but I think perhaps I will make a conscious effort to display more sympathy for Prof. Kmiec (if not for some of his arguments) in the future. Anyone with such a difficult and debilitating illness is in need of prayers for their physical, psychological, and spiritual well-being. Our Lady of Sorrows, ora pro nobis.

  • “Empathy” [Einfuehlung] is one of those German make- believe emotions; an attempt to displace the more obvious and traditional word “sympathy”.

    It’s a faker’s word. As in Mr. Clinton’s “I feel your pain”.

  • This analysis makes vastly more sense than Kmiec’s article, and you didn’t even get to the part where he explained how lacking in “meaning or lasting effect”–not to mention empathy–is “coerced morality” of the sort some villainous people propose as a solution to the problem of abortion in America. It’s too bad your analysis can’t also be printed in America, but it seems they only accept submissions from prominent pro-life Catholics like Douglas Kmiec.

  • Isn’t justice supposed to be blind anyway???

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