Antonin Scalia Was the Opposite of Empathy

Justice Scalia once said that there was nothing unconstitutional about an innocent man being executed. I get what he means, but I also get that he didn't have an empathetic bone in his body. RIP.

So you're innocent. Big whoop.

Yes, Barack Obama uttered the E-word -- empathy -- to much derision as he nominated Elena Kagan, so much so that Ms. Kagan disavowed it. Fine, but according to Dahlia Lithwick of Slate -- my favorite judicial commentator -- empathy remains one of three traits that shape Barack Obama's notion of what a good judge needs.

Filter each of these three qualities through your Build an Obama Jurist Machine, and it seems to me that the end product is quite easily identifiable: Each of these impulses argues for a nominee who looks and sounds a lot like, well, Obama. In other words, I suspect if Obama were to construct his platonic Scalia replacement it would be a Justice Obama—an idea floated just last month by Hillary Clinton. Obama has now proven twice with his Supreme Court picks—and many times with his lower court nominations—that empathy, restraint, and the ability to reach across the ideological aisle matter a lot to him. I would hazard that he’d pick someone temperate and restrained; and, this time around, utterly unconfirmable nevertheless.

Yes, Obama would nominate himself if he could or if he actually wanted the job. What comes out of Lithwick's analysis is that giving a shit about the underdog is a distant notion, quite different from establishing who, in a plutocrat's eyes, should really be in charge of this country, or this country's citizens. For, beyond empathy, restraint, and the ability to reach across the aisle is a very simple idea: To protect life, liberty, and the pursuit of happiness, we need someone other than a bully. We need someone who cares, automatically.

That doesn't mean handing a gun to a person who wants to commit suicide or offering heroin to a junkie, but it doesn't mean handing an empty bowl to a starving man, either.