Has everyone stopped caring about empathy?

President Obama's nomination of Solicitor General Elena Kagan to the Supreme Court, with confirmation hearings scheduled to begin today, has unleashed a tsunami of media accounts of her legal career and personal life. Strikingly absent from the sweeping coverage, though, is a subject that drew widespread attention when the president learned of Justice David Souter's decision to retire.

Speaking of replacing Souter, the president told reporters at the time: "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.

"I view that quality of empathy," he continued, "of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes."

When Obama first spoke of Kagan, his list of her judicial qualifications was near-Homeric. Nevertheless, empathy was not among them. Although he had emphasized empathy in his book The Audacity of Hope, during his campaign for the presidency, and before he chose Sonia Sotomayor as his first Supreme Court nominee last year, it's gone now.

What happened to empathy?

Empathy for the devil

Perhaps it went missing because of the uproar from Obama's political opponents. There was, for example, Republican National Committee chairman Michael Steele's radio rage (while substituting for Bill Bennett): "Crazy nonsense empathetic. I'll give you empathy. Empathize right on your behind!"

Lacking the decibels and anatomical parts of Steele's diatribe, criticism also came from the academic right. Northwestern University law professor Steven G. Calabresi, cofounder and chairman of the conservative Federalist Society, objected, "We should not let Mr. Obama replace justice with empathy in our nation's courtrooms."

To consider whether empathy is a desirable judicial credential, it's essential to keep its meaning in mind. Empathy is the ability to vicariously experience another person's thoughts, feelings, or attitudes.

Sympathy and empathy have close syllabic identities. But while their meanings may be deliberately or accidentally equated, they are not the same.