Justice John Paul Stevens is the model for why empathy matters.

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The Unsung Empathy of Justice Stevens
Justice John Paul Stevens is the model for why empathy matters.
By Dahlia Lithwick and Sonja West
Posted Friday, April 9, 2010, at 6:03 PM ET

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It's been almost a year since President Obama made his ill-fated remark that the quality he was seeking in a replacement for former Justice David Souter was "empathy." For anyone who may have repressed the subsequent unpleasantness, here's a brief recap: 1) Obama repurposed his words from The Audacity of Hope suggesting that empathy means one should "stand in somebody else's shoes and see through their eyes," and then 2) everybody went freakin' crazy.

The resulting media war on empathy, of course, completely twisted the word to mean that Obama wanted a justice who would use the Constitution as a decorative coaster and decide cases based on his or her feelings and the weather. Somewhere in the whole empathy brouhaha, Obama and the Democrats backed away from the e-word. Justice Sotomayor even renounced it at her confirmation hearings. Which may be why Obama failed to use it at all in his comments honoring Stevens' retirement today.

The great 2009 mass retreat from "empathy" was lamentable. Take away all the hyperbole and chest-heaving, and it's patently obvious that the ability to stand in someone else's shoes for a moment makes someone a better judge. If we can't in fact have a court that looks like America, we should seek a court that feels for America.

There may be no sitting justice who better exemplified the difference between diversity and empathy than Justice Stevens. He grew up white, male, heterosexual, Protestant, and wealthy. At no point in time was he a prisoner at Guantanamo Bay or a frightened teenage girl. And yet, over the decades, his rulings and written opinions repeatedly showed us that he could see the world through the eyes of those with very different life experiences from his own. In other words, he tapped his inner "wise Latina woman" when the case called for it, and we are all better for it. Stevens used empathy not to skew or manipulate his jurisprudence, but to consider the effects of his decisions on real people and to accept that the law can look quite different depending on where you're standing. That's part of what made him such a great justice, and it's a quality the president should bear in mind in selecting his replacement.

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http://www.slate.com/id/2250370/pagenum/all/#p2