“We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American [um, like Thurgood Marshall or Clarence Thomas?] or gay or disabled or old [aren’t all the current judges except maybe Roberts and Alito “old?”]. And that’s the criteria by which I’m going to be selecting my judges.” And now one from this week: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”
To me, “empathy” sounds more like code for an activist judge. An empathetic, activist judge is one who really has no qualms about bending the law or making new law to arrive at his or her preferred outcome. In my opinion, this offends fundamental separation of powers principles upon which our country was established. It is the legislature’s job to make laws, the executive’s to enforce them, and the judicial’s to interpret the Constitution, the laws that Congress passes, and apply them neutrally and fairly to the facts of each case. If the people feel that the laws unfairly favor certain groups over the other, they are certainly free to lobby those in Congress who are their direct representatives, not those sitting on the bench, to get them changed. That is why we have the democratic process in the first place.
So here are some questions that (hopefully) illustrate some problems that an “empathetic” judicial philosophy may present. Should the determination of a case turn on whether the plaintiff or defendant is rich or poor, citizen or alien, teenage mom or disabled grandma? Would you want to go before a judge who has “empathy” for Party X if they are on the opposite side? Would you get a fair shake? Doesn’t the Constitution guarantee to all persons equal protection of the laws? Wouldn’t the protection just be more equal for some parties than others with an “empathetic” court, and therefore by definition, be inherently unequal? Wouldn’t this damage the social confidence
in the impartiality of the legal system?
Lady Justice is blind for a reason. In resolving a dispute, a truly neutral judge should not see or recognize the personal features of the parties that bear no relationship to the actual merits of the case. The rule of law and due process require nothing less. Forsaking this conception of judicial blindness to “empathize” with the vulnerabilities of the preferred tips the scales of justice in their favor before the case even begins. It is for the lawmakers and the attorneys to be “empathetic,” not judges. I recognize that every judge will naturally be biased towards certain parties. I’m just saying that these biases should not determine how they rule in cases. The law applied to the facts should be determinative.
Former S.C. Judge Oliver Wendell Holmes understood this. A friend once told him to “do justice sir, do justice.” Holmes replied, “That is not my job. My job is to apply the law. I see that the game is played according to the rules whether I like them or not.” Current Chief Justice Roberts compared his role to that of a baseball umpire, calling balls and strikes based on the rules of the game. If you give me the choice between a judge with this philosophy versus an “empathetic” judge who favors some people above others, I’d take the former any day. But that is just me. Obama has a different opinion, which is fine, and I recognize that whoever he nominates will easily be confirmed by the Senate. To the victor go the spoils. Am I reading too deep into this? What are your thoughts? Sorry for the lengthy post.
4 comments:
Devin, thanks for the post. I agree 100% that the prime consideration should be whether the nominee will be likely to abide by his or her oath to uphold and defend the constitution of the United States. All other considerations should be secondary, but legal skills should be very high on the list. Integrity certainly is up there, too. But "empathy" should not be a consideration at all, primarily because, as Devin points out, such a focus erodes the rule of law.
Also, how will Pres. Obama decide if someone has enough empathy? Because they say so? Who is to say that those now serving have no empathy, or not enough? And just because someone belongs to a group does not mean they are empathetic. Familiarity sometimes breeds contempt. It's not always wise to pick a jury who is like the defendant, because they think they know enough to prejudge.
I gave told Douglas Johnston, a top-notch Houston lawyer (formerly of Baker [James] & Botts) that my "good instincts" were among the reasons he should consider hiring me. He flipped out (I realize now he was right) and said that instincts were no substitute for for good legal skills. He hired me in spite of that flub.
The purely subjective path is dangerous for the Supreme Court to follow because it is entirely unmarked. Deciding a case on empathy, and then searching for a justification happens more often than is healthy as it is. But saying out loud you want justices using empathetic criteria is an open admission that Pres. Obama wants us to dwell in Alice's wonderland, where it is "Sentence first! Verdict later!"
To me this is classic Obama logic: “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” Just like everything else in his backwards universe (which shall heretofore be referred to as bizarro world), down is up, black is white, roses are blue and violets are red, and...JUSTICE (i.e. "just decisions and outcomes") IS FORGIVING (i.e. "empathy"). I think Devin already demonstrated why that is simply not true, I just wanted to point out how it's another instance of Obama acting like truth automatically aligns itself to what he says, rather than him trying to align his beliefs and ideas to what is already true (or at least logical).
If you want to debate the merits of the justice system or the practical applications of "justice" in general, that's one thing. But to resort to trickery and try to turn the idea into something it's not so you can agree with it without REALLY agreeing with it, that's just nuts. Yet that's exactly what we're seeing--and not just with this--and I personally am totally fed up with it. Justice is what it is: it's blind and unforgiving and can indeed be very brutal at times, but those are the breaks. I can't just say: "oh, justice is too harsh, so I'm going to dilute it with some 'empathy'" and then turn around and act like it's still pure...that's just delusional. IF YOU DON'T BELIEVE IN JUSTICE THEN COME RIGHT OUT AND ADMIT IT FOR HEAVENS SAKE! Whatever you do, don't play mind games with America because it'll bite you...even in politics if you're not careful.
I hope I'm not misinterpreted here: though I am admittedly a "strict constructionist" or "originalist" (i.e. someone who believes in true justice), I do recognize that there is an alternative perspective, which is absolutely fine. This is America, and (until recently...my next post will show how we've lost sight of it) we all believed in a First Amendment which ensured we all had the right to believe and even say whatever we wanted to. In short I'm not so arrogant as to think that all my personal beliefs are automatically the best all of the time.
I'm not saying he's wrong for saying or believing something that I don't agree with: what I am saying is that HE NEEDS TO OWN UP TO IT LIKE A MAN. Believe it or not there are certain standards of decency that apply (or at least should apply) to ALL aspects of the political spectrum. Granted we have free speech so there's no direct way of enforcing those standards on everyone (nor should there be), but THERE STILL ARE CONSEQUENCES, to be sure. Though most people know what to expect with politicians, there is a limit to what you can get away with, and I believe Obama has long since passed it. I think the Tea Parties were just the first sign of things to come.
Hey, I just listened to a Michael Steele audio piece from You Tube, through an article on Politico, but I am too inept to figure out how to paste it into the blog. Someone else please do it for me (says the conservative!). You might find it under "Empathize right on your behind. Craziness!" Thanks.
Here's the direct YouTube link:
http://www.youtube.com/watch?v=tFXO0cPENVY
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