The first problem with the word "empathy" is what it is not. It is not other words such as "The Constitution" or "the law."
Lawyers and judges are supposed to actually read the Constitution and the law and decide cases. Empathy is a variant of rule by man rather than rule by law. In South Africa the judges might ask, "What color are you?" rather than "What does the law say." In the Soviet Union they wanted to know if your parents were bourgeois or working class–not if you were right or wrong before the law. Empathy is an excuse to set aside the law and allow a judge to decide what he or she wants to do independent of the Constitution or the law. It is the route to rule by men not rule of law.