Justice John Paul Stevens' announcement of his retirement this morning has his many admirers at a loss: Liberals are already bemoaning the absence of a true liberal leader at the court—a man who could still manage to "count to five" to forge a majority on the sometimes fractious center-left of the court. Others will miss his careerlong independence. Stevens shunned political and ideological labels to go his own way when it mattered most. Lawyers are praising the justice as a "judge's judge" whose respect for the profession and the legal process is unparalleled at the high court. As he steps down, he also takes with him the only military experience on the court. Most of all, among those who worked with him, he will be missed for his courtly generosity, his quick wit, his facility with a bowtie, and his willingness to always ask first before interrupting counsel at oral argument.
As the tributes are lavished on Stevens this weekend, the whispers about who should replace him will also be everywhere. The question seems to prompt most of us to take a long, hard look in precisely the wrong place: a mirror. Nothing brings out our complicated relationship with identity politics like a high-court vacancy. Instantly, women are clamoring for a third female justice; men contend it's their turn for a guy this round; racial and ethnic minorities seek greater representation; academics demand a thinker of great import; criminal defense lawyers want one of their own. And on it goes.
Not one of them is wrong. With the exception of Ivy-educated federal appellate judges with executive-branch experience, there is no demographic in America that is really well-represented at the court. When check-the-box representation is the only criterion, there is bound to be disappointment with only nine slots. (As commentators never fail to point out, there is no gay, Asian-American, disabled, female, veteran candidate on the near horizon, and if there were, she would be un-confirmable anyhow.)
But if the retirement of Justice Stevens highlights a single value we should demand in a justice, it's got nothing to do with race or gender or even professional background and everything to do with empathy for others.
Yes. That's right. We just said the e-word.
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.