Empathy... Not That There's Anything Wrong With That

A number of pundits have raised the question of whether Elena Kagen's sexual orientation will or should matter during the consideration of her Supreme Court nomination.  Andrew Sullivan raises the issue in an interesting way...

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.


In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it?

(hat tip: Allahpundit at Hot Air) The White House so far is ignoring or pushing back on the questions about it. I actually think that's proper, but I think the door for these questions is opened by Obama's "empathy" standard for the justices he wants on the High Court. All of us expect justices to be impartial arbiters of the questions before them, but there's a question as to how much an individual's personal experiences will influence their decision in a case. Obama seems to want (and may well have selected) justices whose decision-making process involves more than just consulting the law -- he wants justices who consult the well of their own personal experience before coming to a final judgement.  Part of the problem with such an approach is that it leaves his nominees open to questions about their personal experiences, and about intensely personal decisions, such as whether to publicly acknowledge one's sexuality.  I don't think the questions should be asked, but I don't think the standard of "empathy" should be the basis for a judge's decision.

Politically, I doubt the question will be asked, because it's just not proper.  But Sullivan, who's a noted proponent of gay marriage, may have another reason for acknowledging this problem.  If the High Court later rules on the constitutionality of same-sex marriage, there may be doubts cast on whether Kagen's vote is based on the law, or based on how the decision impacts her own personal life.  That's what the empathy standard tees up as a problem.