Today, the Senate Judiciary Committee will vote on whether to confirm Judge Robert Chatigny to the Second Circuit of Appeals. As I explain here, Chatigny provides the perfect example of why Obama's "empathy" standard for judges is extremely dangerous and improper. In an infamous 2005 case, Chatigny, a federal district court judge in Connecticut, fully displayed the "depth and breadth" of his empathy. Ignoring his judicial duty to be impartial, he attempted, by asserting bizarre, unprecedented legal arguments and even bullying attorneys, to remove a serial rapist and murderer, Michael Ross, from death row. Why? Because Chatigny thought that Ross's "sexual sadism" was "clearly a mitigating factor." In fact, Chatigny railed, Ross was the "least culpable of anyone on death row" because of his sadistic tendencies.
Obama stated that he would seek judges who empathize with certain groups: the poor and the disabled, for example. He did not mention sadists.
Yet there is nothing in his theory that prevents judicial favoritism for this particular group. In fact, if we take seriously the words of Obama's SCOTUS nominee, Elena Kagan, who stated that judges should have empathy for the "despised and disadvantaged," it would seem that empathy for "despised" murderers would fit neatly within Obama's theory and Kagan's as well.
Bottom line: once we declare that a judge should be guided by the whims of his empathy, we cannot demand that he direct his empathy to the party that we happen to think most deserving of it. Chatigny's empathy for the "Roadside Strangler" should serve as a resounding reminder of the need for judges to look not into their "hearts" for guidance in a case, but to the law.