[From Joel] President Obama's selection of a person who he judges will have the proper "empathy" brings up an interesting point concerning the evolution and philosophy of law. The history of law is one in which individual cases were decided one by one by the ruler or his designate based upon subjective conditions. The rightness or wrongness of a certain action was unpredictable, because there was no fixed code.
Hammurabi's law code, the first written code of laws in human history, marked a breakthrough in the concept of justice. Later on the concept of precedents limiting the latitude of judges to decide as they saw fit, gave us a government of laws not of men.
Theoretically, empathy and sympathy only enter into the penalty phase in the form of "mitigating circumstances" except for the situation in which the jury illegally ignores the law.
The notion that a supreme court justice is to empathize with the individuals or individual involved in a case before it, seems a strange concept , since cases become precedents. It leaves us with a situation in which the law loses one of it's most fundamental characteristics, that of reliability. For every case that is brought to court there are probably hundreds that are prosecuted (or not) at the local level based upon templates previously established by the supreme court. For every case prosecuted or not there are thousands of ordinary people and businesses who govern their behavior based upon these templates.
How is our massive society to function if we revert to an empathetic "Solomon the Wise" approach to justice?