On the empathy thing:
This post, from a fairly conservative law professor, explains it pretty well:
http://althouse.blogspot.com/2008/10/steven-calabresi-envisions-obamas.html and is a direct answer to the the WSJ editorial.
The truth is, there is no such thing, at least at the Supreme Court level, as black-and-white when it comes to the law. That's why we HAVE a Supreme Court. Obama is somewhat to the left of me on these issues, but again in the mainstream. The truth is, the Court often makes decisions based on opinions, political theories, etc. They are human. They have relatively little guidance. And although I think Obama would prefer more sweeping decisions than I would favor, and perhaps looser interpretive boundaries, he's right about the empathy, and, within limits, the little guy.
I'll give you an example of a really BAD decision recently . . . the equal pay one. The court's two central reasons for its ruling were that Congress said 18 months, but didn't say when those 18 months had to occur (the dispute was whether a woman could file a suit about unequal pay if she had recieved an unequal paycheck within 18 months, or whether she had to file within 18 months of the FIRST unequal paycheck). The law didn't say. The other reason was fear of lawsuits . . .that there would be a tide of them.
Well, I think Congress probably meant an unequal paycheck within 18 months, but leave that aside. And the law in most of the country had been that if you sued within 18 months of an unfair paycheck, you could sue . . . and there had been no tide of lawsuits. Despite the way the law had been applied for years, without disaster, the court decided to change it . . . to favor employers over women. Now, there should be a balance--giving female employees all the cards would be a problem--but I think the court went way to far, and i'll explain why.
The real problem here was a failure of empathy and understanding. Congress' intent, however poorly worded, was to have women paid equally for equal work. Considering that it is expressly against the rules in many jobs to ask how other people are paid, many women have no opportunity to find out that they are being treated unfairly within 18 months of the first paycheck. It may take YEARS to figure it out, as it did with the plaintiff. So, you've been cheated by your employer for years, and now you have no recourse, because you didn't sue way back when . . .way back when you had no way of knowing and could have been fired for asking . . . this is justice?
Moreover, it creates an incentive for employers to hide how much people are paid . . . indeed, to pay unfairly and hide it, because of after 18 months, they are home free.
A bad ruling. But the key failure was a worldview that prefered the possible problems of businesses to the exploitation of women, and a lack of empathy for women who are in no position to discover they are being treated unfairly. Indeed, I will even venture to say that it is a position that comes from a mostly male court (the only woman dissented) from largely wealthy and successful backgrounds (with the exception of Thomas) who have no idea what it is like to be in a job where that can happen, or to be that helpless. Literally, they fail to empathize because they can't imagine it . . . and their general philosophy favors businesses and opposes litigation.
Now, I'm sure I will disagree with some or all of Obama's court picks, and their rulings, and there is such a thing as an excess of empathy. But there is also such a thing as a court with no empathy, and contempt for the little guy. Because there is so much that can't be decided just from the law, these things matter.
I appreciate the time you take to help us all out...and I mean that.