Obama Elaborates on "Empathy," What He Wants in a Supreme Court Nominee:
The transcript of his Friday C-SPAN interview is here, and this is the part about the Supreme Court, continued below the jump:
STEVE SCULLY, POLITICAL EDITOR, C-SPAN: Mr. President, as we speak to you in the White House Library, a constitutional lawyer, former law professor, as you work through the process for you personally in selecting the Supreme Court nominee, what are you thinking?

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Well, there are some benchmarks that you have to make sure that you hit. Obviously, you want somebody who is highly qualified, who knows the law. I want somebody who, obviously, has a clear sense of our constitution and its history and is committed to fidelity to the law.

Is going to make their decisions based on the law that's in front of them, but as I've said before, I think it's also important that this is somebody who has common sense and somebody who has a sense of how American society works and how the American people live.

And you know, I said earlier, that I thought empathy wasn't important quality and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you.

But you have to be able to stand in somebody else's shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living. And a good example of this, the Lilly Ledbetter case that came up a while back, where the justice has I believe misinterpreted the law in closing the door to a lawsuit by a woman who had worked for 20 years and had been paid less than her male counterparts.

She didn't know that she was getting paid less, when she discovered it, she immediately filed suit to get back pay and the suggestion was somehow that she should have filed suite earlier.

Well, I think anybody who has ever worked in a job like that understands that they might not know that they were being discriminated against it. It doesn't make sense for their rights to be foreclosed.

That's the kind of case, where I want a judge not only to be applying the law in front of them, but also to understand that as a practical matter. A lot of times people have weak bargaining power.

Now, in some ways it might cut the other way. I want a judge who has a sense of how regulations might affect the businesses in a practical way. And so, when they're interpreting a statute that they are saying, is congressional intent being met in this kind of circumstance. So, if there is a farm program somewhere, and you have somebody who can take the time to learn about how farmers work that's helpful.

So, in all these cases what I want is not just ivory tower learning. I want somebody who has the intellectual fire power, but also a little bit of a common touch and has a practical sense of how the world works.

  Notably, Obama seems to use "empathy" in different ways here, and in ways that appear (to me at least) to be somewhat different than his earlier uses. At various points in the interview, Obama suggests that empathy means just having an accurate understanding of the world. At other times, he seems to suggest it means being a pragmatist in the sense of interpreting the law to avoid bizarre results. Last I checked, though, no one believes that misunderstanding the world is a good thing, and even Justices like Scalia have a strong pragmatic streak. If that's all Obama means by "empathy," then, I'm not entirely sure what kinds of Justices he thinks don't have that quality. Maybe the idea is someone who is a purposivist rather than a textualist when it comes to statutory interpretation? I'm not sure.