Dahlia Lithwick and a former Stevens clerk wrote how empathy was an important aspect of Stevens' tenure. Concerns about diversity (and talk in some quarters include getting a politician here) should take into consideration that a well off white guy "got it too." I would add that some things in his background did help here, including service in the military and some family problems with the authorities. "Diversity" means -- as Sandy Levinson notes in a collection of essays with that word in the title -- a diverse number of things.
In a recent opinion (his "Pledge Dissent"), Judge Reinhardt noted:
Empathy, a much misunderstood term, even in the world of the judiciary, means “the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another.” RANDOM HOUSE DICTIONARY OF ENGLISH LANGUAGE 468 (1979). It is a quality that is most desirable in, even if frequently absent from, today’s federal judges at all levels of the judicial system.
Many took it as a code word last time around. It really meant bias to a specific side. But, done right, here it means evenhanded empathy. The ability to stand in the shoes of all sides, seeing things through their eyes. When a teenager comes to court to defend her right to join a religious club at public school as much as when she seeks an abortion without total parental veto. Nor is there something special about appellate judging that changes matters. Appellate judges examine facts in a myriad of cases. The idea that empathy is only relevant at sentencing also is specious and lawyers, judges and members of academia repeatedly said as much.
And, then, taking everything into consideration, you determine what the law holds. But, if you don't take each side seriously (not asking questions or belittling litigants doesn't help), it's hard to do that. Part of this is empathy -- one factor among many in human judging. Respecting each side in this fashion doesn't mean you necessarily agree with them. It helps in treating them fairly though. In this respect, Harlan is a case in point. Justice Harlan was a slave-owner who wrote opinions honoring the rights of blacks. His grandson was a patrician conservative sort that was honored for being a "judge's judge," one who saw all sides of an issue.
Likewise, along with his charm and grace, such things helped him attract support from his colleagues and others. As Justice Ginsburg notes:
John Paul Stevens is the very best and most collegial of jurists. On the bench, his polite "May I . . . ," invites advocates to get to the nub of the case. Work from other chambers invariably takes precedence over all else on his agenda. I will miss his bright company, but his caring opinions, sometimes pathmarking, sometimes prophetic, remain to inspire generations of judges, lawyers, and law students.
A "caring" opinion includes one that respects both sides. Some replies to the Dahlia piece cynically felt she only liked his empathy because he tended to vote for people she supported or that his empathy is reality is selective. Putting aside that judges have a special obligation to the disadvantaged (Madison didn't say the Bill of Rights was in place to protect the powers that be), repeated cases of him voting against such people will not convince. I do think some projecting is going on here, but whatever -- me personally, I think empathy is important.
It is both useful and more interesting to see and respect both sides' arguments when reasoning things out. Sometimes, one side isn't worth too much respect, but the arguments in front of the Court tend not to be so clear-cut. I was even called (the horror) "conservative" at times for doing this. Oh well. One last thing. Stevens' is the great liberal on the Court. We need a replacement, especially now, that provides a somewhat similar passion and ability to get votes. Sotomayor was in some ways a "safe" choice, but does not seem so far to be too different from Souter in regards to vote placement.
Some simply safe replacement for Stevens would be a bad move. For instance, there are troubling signs that Elena Kagan will be weak in truly protecting against executive power. Some FDR appointments showed that at times pre-appointment positions can change, but the failure to defend the Dawn Johnsen nomination (which was fucking pathetic -- at least one Republican was on board, even before the Brown election) does also suggest Obama wouldn't mind that much anyways. The Democrats might lost a few Senate seats. Who knows what will be the situation the next time.
If not now, when? Why not pick a Pamela Karlan, Koh or someone else who is a truly liberal and forceful voice from the left? Someone who has spend years showing how smart and skillful they have been while also defending a view of the law that Stevens has upheld for decades? Maybe, Judge Diane Wood is good enough in this respect. But, why not someone who, yes, has a bit of an edge. Health care is passed. Why not focus on this as "the" fight of the Summer? Politically, I think it will help in the '10 elections too, if you want to be simply partisan about it.
I truly was satisfied with Sotomayor and in fact thought she was a fine pick in various ways. I don't think she was a matter of "settling" overall. Will that be the case later when the next nominee is brought out? I can empathize (and agree) with those who fear not. We shall see.