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Should Empathy Be a Standard for Judging a Judge?

When it comes to evaluating nominees to the federal bench -- particularly to appellate courts and the Supreme Court -- presidents typically focus on the candidates' legal skills and intellectual acumen. And indeed, the public has come to expect stellar academic and intellectual credentials from nominees. Recall, for example, the criticisms from liberals and conservatives alike in response to Bush's nomination of relatively undistinguished Harriet Miers to the Supreme Court.

So do any factors other than brains and biases (as in political biases) come into play when nominating a judicial appointment? President Obama seems to think so, at least as indicated by the White House statement that accompanied yesterday's announcement of David Hamilton as the president's first judicial nominee.

Hamilton, a federal district court judge in Indiana, was appointed to a seat on the 7th Circuit. When asked about the reason for Hamilton's selection, press secretary Robert Gibbs reiterated the president's intent to choose federal judges who "will value a wide variety of past experience and having the ability to empathize and walk in someone's shoes,” reports The Blog of Legal Times.

As the BLT points out, Obama's desire to consider a judge's life experiences and ability to empathize is controversial. In particular, many fear that an empathetic judge may be inclined to ignore the law to reach a desired result. I disagree. To me, empathy means a willingness to listen and that's often what litigants care about even more than the actual result.

Posted by Carolyn Elefant on March 18, 2009 at 03:33 PM | Permalink | Comments (3)

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