"We need somebody who's got the heart to recognize -- the empathy to recognize what it's like to be a young teenaged mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old ... And that's the criteria by which I'm going to be selecting my judges."
It doesn't sound like he's talking about mitigating factors. When it comes to a dispute between two parties, none of those factors should make a difference except to the extent that they determine the facts of the case. Either way, "empathy" shouldn't play a role.
Given the tendency of many Supreme Court justices to determine cases based on their own notions of what's "fair", the fact that Obama has said he doesn't find the Warren Court radical, and his empathy standard, I'm concerned we'll end up with another judge who will give us horrendous decisions like United Steelworkers of America v. Weber or Kelo v. New London.