Our friend John Hasnas has a terrific op-ed in this morning's WSJ arguing that when judges use empathy as part of their decision-making process, it leads them to focus on the visible victims of a law and to ignore the unseen victims of any proposed remedies. Two excerpts:
The law consists of abstract rules because we know that, as human beings, judges are unable to foresee all of the long-term consequences of their decisions and may be unduly influenced by the immediate, visible effects of these decisions. The rules of law are designed in part to strike the proper balance between the interests of those who are seen and those who are not seen. The purpose of the rules is to enable judges to resist the emotionally engaging temptation to relieve the plight of those they can see and empathize with, even when doing so would be unfair to those they cannot see.
A great Hayek-Bastiat take on the Sotomayor nomination.