“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.
