[I posted this over at the Slate fray and it is a bit repetitive but sums up and focuses on empathy in particular. Today involved witnesses, more pro forma than usual since the Byrd ceremonies pushed them until after 4. Usual stuff -- Dems focused on certain litigants, conservatives who like Kagan and women while Republicans focus on abortion, guns and gays. Fairly tedious.]
Finding value in these hearings sometimes is like trying to find history in a garbage pile in the middle of the desert -- it requires not being overwhelmed by the junk. But, value is there. She talked about the use of legislative history, the importance of text and original understanding but the need to apply them to current knowledge and precedents, the basic criteria to use to overturn precedents, strong respect for legislative fact-finding, the limited respect given to summarily decided cases and so on.
Comments like this also stand out:
Kyl: In the time of sentencing, a trial court might be able to invoke some empathy, but I can't think of any other situation where, at least off the top of my head, it would be appropriate. Can you?
Kagan: Senator Kyl, I don't know what was in the -- I don't want to speak for the president. I don't know what the president was speaking about specifically. I do think that in approaching any case, a judge is required, really -- not only permitted, but required -- to think very hard about what each party is saying, to try to see that case from each party's eyes, in some sense to think about the case in the best light for each party and then to weigh those against each other. . . . But at the end of the day what the judge does is to apply the law. And as I said, it might be hard sometimes to figure out what the law requires in any given case, but it's law all the way down.
"Empathy" is not the same thing as "sympathy" to one side. To cite Judge Reinhardt:
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.
[And, is not sentencing basically the application of various criteria to the defendant? Again, seems like Kyl was thinking about "sympathy," not understanding the position of the defendant in a way that helps to accurately apply those criteria to that one person. This same thing can be used to determine if such and such is a "reasonable" search or wrongly endorses religion in that some group is led to feel like outsiders or if the terror of a person being allegedly mistreated in prison is such to violate the 8A. Stepping in their shoes is helpful to so determine; mere sympathy will not decide the question.]
The idea seems to be that Obama et. al. are trying to give a certain group illegitimate special favor. But, to the degree certain "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry," it is standard "settled law," as Sen. Franken cited.* Madison also spoke of the rights of minorities (broadly speaking) needing special protections that majorities might not need.
As Kagan notes, sometimes the courts treat the government in court more harshly than individual litigants, rightly so (she said) since they are not on equal standing. This is what Obama was talking about -- the alternative is a Lochneresque idea that we can't have minimum wages since we have to treat the worker and business as equal contractual parties. But, a worker is not equal to the corporation s/he works for and it is folly to assume otherwise.
True equality requires us to respect that; this doesn't mean violating the rights of the owners of the corporation. The same as to understanding that not everyone has an equal standing in practice in our republican system of government and the courts can respect that and help even things out. As Kagan noted, this is a major reason Thurgood Marshall is a hero of hers -- he thought the courts was a place where everyone can have an equal shake, which doesn't always mean treating them exactly the same. For instance, the poor might be provided an attorney for free, since others have the means to pay. "Equal" can be defined in a way that misses the forest for the trees.
A close examination of Obama's policies would belie the fact that he does not respect the interests of corporations and other PTB anyways.
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* The case itself is revealing in response to the specter of Congress regulating how many vegetables you should eat a day. It cites "the great importance to the public health of butter fat and whole milk" but not to uphold a power to force people to consume the stuff. The interstate sale of cheap substitutes was at issue. Likewise, the health care/insurance law doesn't force people to use insurance; it regulates a national industry and sets up a tax scheme as part of that.