A Brief Comment on Empathy and Constitutional Law
I tend to agree with Ed's assessment regarding the use of empathy in the judicial decision-making process. If the meaning of The Constitution/statute/whatever has "run out" then fairness is certainly a valid consideration to be weighed in rendering a final decision.
However, I also see the potential for considerations of fairness/empathy to cause problems. Call me old-fashioned (or even, <gasp>, a formalist), but I tend to put a lot of stock in determinacy. One of the important functions of "the law" is to reduce arbitrariness; in a quality legal system people should be relatively certain as to cause and effect.
Here's my concern... the focus on empathy will lead an increase in indeterminacy. Concerns over fairness won't be limited simply to situations where the meaning has run out, but will leak over into situations where the meaning is pretty clear. Ledbetter, I think, is an excellent example in this regard. Everyone is pretty much in agreement that it was a shitty outcome which offended many peoples' notions of fairness. At the same time, however, the statute which the court was called upon to interpret wasn't ambiguous; it specified the aforementioned shitty outcome. I don't mean to dwell on Ledbetter specifically, but rather hold it up as an example of the type of case where an immediate focus on empathy could do more harm than good in the long run.
How would Ledbetter have been decided in an environment more focused on empathy? Does Obama want a justice who would say that yes, the meaning of the statute is plain, but that plain meaning is overridden by concerns of fairness? Such reasoning, if put into effect, would have a pernicious effect in the long run. People would have less certainty regarding cause and effect and the law would become, to some degree, more arbitrary. Even if the purpose is allegedly beneficent that's an outcome that we should seek to avoid.