The second part of my LA Times debate with Erwin Chemerinsky over the Sotomayor nomination is now available, here. In this series of posts, we consider the pros and cons of judicial reliance on "empathy" in making legal decisions:

President Obama has come under fire for his "empathy" standard in selecting a Supreme Court nominee. Is there a conflict between considering the real-world implications of Supreme Court decisions and staying true to the intent of the Constitution and federal law?

I argue that relying on empathy is likely to reduce the quality of judicial decision-making and bias it in favor of whatever groups the judges feel more empathetic towards. Chemerinsky contends that judicial reliance on empathy is both inevitable and often a positive good.

Writing the piece on empathy helped me to clarify my thinking on the subject. However, I fear that to some extent Chemerinsky and I are talking past each other. I don't disagree with Chemerinsky's claims that conservative justices (like liberals) sometimes base decisions on empathy and on their political ideology, and that judicial reliance on empathy cannot be completely eliminated. Still less do I reject his claim that cases that come before the Supreme Court often don't have easy answers (a point I noted myself). Rather, my view is that reliance on empathy is a negative rather than a positive - whether practiced by conservative judges or liberal ones. I also think that it is a poor way to resolve either close cases or easy ones. Finally, I have no wish to defend all of of the jurisprudence of the current conservative justices or to suggest that they always meet the standard of judicial impartiality I advocate. Ultimately, I think the real issue is not whether conservative and liberal judges sometimes rely on empathy (they both obviously do), but whether we should strive to reduce such reliance or increase it.

Part I of our debate is available here. The discussion will conclude tomorrow.