Prepare for the inevitable media finger-wagging towards Republicans who vote no on Sotomayor by refreshing your memory of how The One treated two eminent jurists while a member of the Senate. The clip of his Alito speech is shorter and more ironic — he worries about a judge who’d side with the executive branch in matters like (gasp!) indefinite detention — but the Roberts clip gives you a better feel for just how stupid and dishonest his litmus test is. Here again we have the talismanic invocation of “empathy” as the touchstone for deciding cases where the law isn’t clear; as near as I can tell, “empathy” means a judge should determine which party is the weaker of the two and rule for them on that basis alone unless the relevant governing cases and statutes are so clear as to compel a verdict for the stronger. In other words, he doesn’t want judges who’ll reason from principles to arrive at an outcome; he wants them to arrive at the outcome first, wherever possible, and then reason backwards to justify the decision. Not only is that antithetical to the concept of a rule of law, it reduces complex questions involving competing values to moronic binary calculations about “the strong versus the weak.” For example, as liberal as it was, even the Warren Court never went so far as to declare a constitutional right to welfare, no doubt realizing how crippling that sort of entitlement would be to future Congresses notwithstanding its sympathy for the poor. In the Obamaverse, though, that’s an easy case: Who’s weaker, the Treasury Department or people living below the poverty line? Empathy to the rescue!