Obama Wants Somebody to Feel Your Pain

Following the law is not a requirement:

On the verge of choosing his first Supreme Court nominee, Barack Obama has already provided a profile of the person he is likely to pick: an intellectual heavyweight with a little "common touch," someone whose brand of justice means seeing life from the perspective of the powerless.

Obama is expected to announce his nominee this week, as early as Tuesday. His words, his young presidency and his own life experience reveal what the nation should expect -- and help explain how the president is making a decision that will endure long after he leaves office.

"You have to have not only the intellect to be able to effectively apply the law to cases before you," Obama said in an interview carried Saturday on C-SPAN television. "But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living."

That quality -- Obama calls it empathy -- is a huge factor in picking a successor to retiring Justice David Souter. Among the others Obama is weighing: judicial philosophy, intellectual sway, gender, ethnicity, age and the politics of Senate confirmation.

Just because I can, let me replay the words of now Chief Justice John Roberts on his judicial philosophy. Compare and contrast:

ROBERTS: I had someone ask me in this process, I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy," and you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that I'll look out for particular interests; I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States, and that's what I would do.

Supreme Court decisions are not about helping the powerless beat the powerful, they're about interpreting the law to the advantage of neither. Empathy makes lefties feel good, but it has the potential to make for bad law.