President Obama has singled out empathy as an essential quality for a Supreme Court Justice. He plans to nominate someone who understands that justice is not simply an abstract theory, but "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." The reaction has been swift and intense: the consensus is that empathetic judges are a threat to the rule of law. As one pundit put it: "Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."

This criticism confuses empathy with sympathy. It also misunderstands the judge's role. Empathy is the capacity to understand the perspective of another. It is an essential attribute for living in the social world, and a crucial component of legal judgment. Judges need to understand multiple perspectives. What they do with that understanding is a separate question.

For example, recently the high court heard arguments about whether the strip search of middle school student Savana Redding violated the Fourth Amendment. A judge might well feel empathy for both the student who underwent this humiliating search and the school officials charged with keeping students safe from harm. Empathy helps illuminate what's at stake for all the litigants, giving judges a fuller picture of the possible consequences of its decision. It doesn't resolve who should prevail in the particular case.

It's not difficult to have empathy for people like ourselves. We don't usually think of it as empathy at all. We use the term to describe the difficult feat of understanding the perspective of those from a different background. In the argument in the strip search case, for example, the justices easily understood the pressures weighing on school officials, but several justices had trouble understanding what was at stake for the student. Justice Breyer saw little difference between strip-searching Redding and requiring students to change into their swimsuits in the school locker room. It fell to Justice Ginsburg to remind her brethren that the case involved asking a thirteen-year-old girl to strip to her underwear and shake out her bra and underpants in front of school officials who suspected her of concealing prescription ibuprofen.

As most students of the Supreme Court's decisions readily admit, constitutional interpretation requires interpretative choices. In the Redding case, for example, the court will need to interpret the Fourth Amendment to determine whether the search struck the proper balance between the students' safety and their privacy. If easy answers to such questions existed, there would be far fewer 5-4 decisions. Justices interpret the Constitution in light of their assumptions about how the world works. A range of backgrounds and life experiences will increase the odds that those assumptions are challenged when they are off-base, or at least that no judge assumes that his or her own perspective is universal. Supreme Court justices, like the rest of us, make better decisions in an atmosphere of lively debate than in an echo chamber.

Judicial nominees and their supporters routinely assure Congress that they both intend to uphold the rule of law and are capable of empathy for those less fortunate. Clarence Thomas's controversial nomination to the Supreme Court got a crucial boost when liberal judge Guido Calabresi wrote that Thomas understands "what discrimination really means" and knows "the deep needs of the poor and especially poor blacks." Sen. Danforth (R-Mo.) added his own assurances that Thomas's heart would be with "the ordinary folk" if he were on the Supreme Court. In his confirmation hearings, Samuel Alito sought to reassure those concerned about his capacity to empathize with workers and the poor by describing his Italian-immigrant father and his own upbringing in "an unpretentious, down to earth community." It's tempting to be cynical about such assurances, but the point is that they speak to a legitimate concern about judicial judgment. Obama's statements suggest that he takes this concern very seriously.

When Obama, on the campaign trail, promised to nominate candidates who have "the heart, the empathy, to recognize what it's like to be a young teenage mom ... to understand what it's like to be poor or African-American or gay or disabled or old," he was asserting that the current Supreme Court has been too one-sided in its empathy. At the same time he was, as Chris Eisgruber rightly points out, articulating his own vision of the Constitution, and of the Court's role in interpreting it. We can and should debate whether we want our next Supreme Court justice to share the President's values. Let's not get sidetracked, as we have in the past, by the notion that Supreme Court justices are mere technocrats who can simply apply the law without making value choices. That notion leads only to confirmation hearings in which neither Congress nor the American people are given the information they need to evaluate candidates for the highest court in the land.