In an article titled Obama Makes Empathy a Requirement of the Court, Peter Slevin of the Washington Post writes about the kind of Supreme Court Justice President Obama intends to appoint,
“After Souter’s plans to retire became public, Obama spoke of empathy as “an essential ingredient for arriving at just decisions and outcomes.” He said he would look for someone ‘who understands that justice isn’t about some abstract legal theory.’”
Obama has it completely backwards.
What we should demand of our Supreme Court Justices is fidelity to the law, not to persons, causes or ideals.
What a particular Justice thinks is the right or empathetic thing to do is wholly irrelevant to his or her job.
The entire premise behind being a Judge is impartiality.
And if a Judge brings his empathy to the bench, by definition he is biased and should recuse himself from the case.
Judges represent nobody – not the rich, not the poor, not minorities, and not the handicapped.
What is relevant to a Judge is the law. Only the law. Nothing but the law.
It disturbs me greatly that a former Harvard Constitutional Law professor like President Obama does not know this basic rule of judicial temperament.
If a Justice were to actually decide a case based not on the law but on his personal feelings of pity for a particular litigant, he should immediately be removed from the bench for violating his oath to uphold the U.S. Constitution and allowing his personal bias to obstruct the administration of justice.
For example, what if Justice Scalia happens to “empathize” with a corporation that is polluting the environment? Should he act on his empathy and allow that company to continue to damage the planet?
Why, of course not.
But Obama doesn’t mean that kind of empathy.
What Obama means is he wants a Judge who will take the side of the poor, minorities, women, and the handicapped over that of big business, the rich, and the powerful.
When Obama says that empathy is “an essential ingredient for arriving at just decisions and outcomes,” what he is saying is that he doesn’t want an impartial judge who will apply the law without passion, but a biased one who will read into the Constitution (and legislation created by democratically-elected representatives) his or her own personal ideas about the kind of laws we should have.
You can call it empathy if you’d like, but it’s judicial activism, straight up!
And it’s precisely the opposite of what judges – especially Supreme Court Justices – should be doing.
It is proper for legislatures to enact empathetic laws if they so choose.
It is decidedly improper for non-democratically elected, lifetime-tenured Justices to read into the law their own personal feelings and desires.
Lady Justice wears a blindfold for a reason.
2 responses so far ↓
1 Leftfield // May 14, 2009 at 6:10 pm
“What is relevant to a Judge is the law. Only the law. Nothing but the law.”
If it were this easy, cases would never get to the Supreme Court. The lower court judges would get it right every time, or the parties would figure out the law on their own without going through all the hassles of litigation. There is no way to avoid Justices reading into the law their own personal feelings and desires. I think Obama will seek to appoint a judge who will have empathy for all litigants, not just the poor, women, minorities, and the handicapped. He’s not going to appoint Oprah.
2 Peter // May 14, 2009 at 9:05 pm
I didn’t say it was easy.
Of course we should expect and demand that Justices set aside their personal prejudices and biases before deciding cases.
Fair-minded Judges regularly recuse themselves when they have a known bias.
By the way, Supreme Court Justices only decide issues of law. Empathy shouldn’t figure into the equation at all.
And do you really think Obama is concerned about the rich and powerful when he says he wants to appoint an empathetic judge?
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