The chief executive is granted perhaps the most unique exercise of empathy: the power to pardon. Mercy and clemency belong to him, to be used as a corrective when the rigor of the law - as applied in a particular case - is too great. President Obama would be well-advised to reserve this constitutional prerogative for himself. Instead, there seems to be an increasing reluctance on the part of executives to use the pardon (other than midnight pardons of their cronies), which bespeaks yet another corruption of the separation of powers.
Montesquieu, the great theorist of the separation of powers, notes that while it is appropriate for members of the executive branch to "undertake public business with a certain passion ... tribunals of the judiciary must, on the contrary, be coolheaded and, in a way, neutral in all affairs."
It is hard in this age of compassion to speak against empathy. It makes one seem antipathetic. But the judiciary is by nature antipathetic - grave and solemn in forbidding black robes. Give me a judge with Montesquiean sangfroid, imperturbable not empathetic, moved by logic not passion, coolheaded rather than warmhearted. From such a justice, I may get justice.
