The Trouble With 'Empathy'

President Obama has stated that he will appoint a nominee who doesn't merely take into account the law but who has 'empathy' for certain classes of people, namely homosexuals and minorities.  The problem with empathy is which side to be empathetic towards, which is why so many have called Obama's use of the word 'empathy' as a code for liberal results.  Roger Cohen shows this difficulty in relation to the recently argued case of Ricci v. Destafano.  

"[Ricci] is also the lead plaintiff in a case recently argued before the Supreme Court. It was Ricci's misfortune to take -- and pass -- the New Haven, Conn., fire department's exam for promotion to lieutenant and captain, and then have the job denied him because he is white. Others will argue -- fatuously and, when they are before St. Peter, with heads bowed in shame -- that race had nothing to do with what happened to Ricci, but the fact remains that had he been black, his uniform would already sport a lieutenant's bar.

It is also Ricci's misfortune to be dyslexic. This means that he had to study extra hard and extra long for the exam, up to 13 hours a day. He gave up a second job and paid an acquaintance more than $1,000 to read the suggested textbooks onto audiotape. In the end, Ricci's effort paid off. Among 77 candidates for eight vacancies, he had the sixth-highest score.

Alas, none of those who qualified were black. This is a pity, but not really Ricci's fault. In his 11 years as a firefighter, nothing in the record suggests he had done anything to retard the progress of blacks or Hispanics, so it is not clear why he should be denied promotion. The answer, as we all know, is that the individual counts for naught in such matters -- it is the group that is paramount."

Who deserves a judges 'empathy'?  The dyslexic fire fighter who studied 13 hours a day to earn one of the top grades?  The black fire fighters who, despite a race neutral exam, did not earn a promotion but who were once grossly discriminated against?   The answer should be neither, but unfortunately our President doesn't see it that way and neither will whomever he nominates.