More on Obama and Judges

In reaction to Rick and Rob on Obama, I think that we do not want judges (in constitutional and statutory cases) to carry out "their broader vision of what America should be," but that we do want judges who can understand (or try to understand) "what it's like to be gay, poor, or black" (as well as other characteristics; I do think there's a problem with overly selective sympathy).  Sympathy for the real-world conditions of people is a judicial virtue, not because the judge is suppose to enact that sympathy solely or in the face of the law, but because it is often essential to giving meaning to the directives of the law (constitutional or statutory).  Interpretation, even an under an originalist analysis, often requires making an analogy (or disanalogy) between the context of the enactment and the context today.  For example, could a justice have voted to strike down school segregation in Brown without making some judgment that segregation denied equality to people in an analogous way to the black codes of 1868, and that education had become so pervasive a factor in people's opportunities by 1954 that it was analogous to the rights (property, contracts, etc.) as to which the 1868 framers meant to guarantee equality?  Would a justice be able to reach those conclusions, or even address those questions, without trying to imagine "what it [was] like to be black" in segregated societies/schools"?

As another example, I've found that asserting the constitutional right to bring religion into the public square -- a well-grounded right historically, but one whose contours in current situations are not entirely clear -- won't succeed unless judges try to sympathize with the religious believer facing the state: the student who wants to do a religious paper topic in class over a teacher's objection, or the family that wants their religious choice included equally in a school choice program as against the state's teacher's lobby and Blaine Amendment history.  Without thinking "what it's like to be a serious religious believer," judges tend to say "I don't see that you're that burdened; you can still practice your religion at church and home."

Tom