PICK A "BLIND" ONE:

Beware Of Empathy: What we should expect of our next Supreme Court nominee. (Richard A. Epstein, 05.05.09, Forbes)

More disturbing, however, are Obama's own words on judicial selection, dating from 2007:

"We need somebody who's got the heart to recognize--the empathy to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

It might be smart politics for Obama to play to his natural constituencies, but intellectually there is, I think, no worse way to go about the selection process. Empathy matters in running business, charities and churches. But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice.

Iustitia is not blind to the general principles of human nature. Rather her conception of blindness follows Aristotle's articulation of corrective justice in his Nicomachean ethics. In looking at a dispute between an injurer and an injured party, or between a creditor and debtor, the judge ignores personal features of the litigant that bear no relationship to the merits of the case.

So in a tort action, determining the fault of a driver doesn't turn on whether he or she is rich or poor, citizen or alien. It's simply turns on who was in compliance with the rules of the road. And in a collection case the first order of business is whether the debtor has paid his debt, not his or her wealth or citizenship.

Equally important, the scales of justice indicate that legal rules depend on balancing interests. But how? Not by ad hoc sympathy, but by the orderly introduction of various defenses to the plaintiff's claim.