With characteristic brilliance, Thomas Sowell has perfectly analyzed President Obama’s statement that he intends to appoint a Supreme Court justice who will be empathetic to certain groups. I’m really having a tough time excerpting his article here because it’s so good, and I recommend you read the whole thing.
Here are a few highlights:
That we are discussing the next Supreme Court justice in terms of group “representation” is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.
That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.
And what about that notion that justice should be blind?
Would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.
Appoint enough Supreme Court justices with “empathy” for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees “equal protection of the laws” for all Americans.
We would have entered a strange new world, where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.
But why is it that people like me are so concerned?
In the American system of government, presidential term limits restrict how long any given resident of the White House can damage this country directly. But that does not limit how long, or how much, the people he appoints to the Supreme Court can continue to damage this country, for decades after the president who appointed them is long gone.
Justice John Paul Stevens virtually destroyed the Constitution’s restrictions on government officials’ ability to confiscate private property in his 2005 decision in the case of “Kelo v. New London”– 30 years after President Ford appointed him.
The solution to institutional discrimination is not discrimination in the other direction. Fairness and justice are not served when a pendulum of empathy swings from side to side. While President Obama tries to rip the blindfold off Lady Justice, the people should demand it be tightened ever more.
I had predicted a Supreme Court vacancy early in Obama’s term, but I was a bit surprised to see Souter go. It is highly likely that President Obama will get to appoint at least three Supreme Court Justices, who—depending on age—could affect the Court for the next 30-40 years. These are the spoils afforded the victor, and Republicans had better get the message that it is happening because they squandered their opportunities to govern as conservatives. The consequences always come.
Finally, though I prefer our system of government to all others on Earth, I am all the more thankful that in the coming Court of Judgment we will all be treated the same and that the Judge is Justice Himself.
6 comments
Comment by Steven Roemerman on May 5, 2009 at 9:05 AM
Great article, thanks Tyson….
Here is another great excerpt,
“Some people say that who Barack Obama appoints to replace Justice Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with “empathy”– which is to say, with justices who think their job is to “relieve the distress” of particular groups, rather than to uphold the Constitution of the United States.”
I’ve been so guilty of that kind of thinking.
Comment by RSU Prof on May 5, 2009 at 12:35 PM
I watched Obama’s press conference when he discussed the qualities he would like to see in his nominee, and I disagree with Sowell’s characterization. Specifically, I reject the particularistic interpretation of “empathy” that Sowell imputs to Obama. Rather, I think he was speaking about the qualities that make a person a good judge, and certainly empathy is high among those qualities.
Judges lacking in empathy are likely to be indifferent to the impact of their rulings, and hence to be arbitrary and capricious judges, which is not something that we should look for in occupants of the highest court in the land (we already have enough of those types:) ).
Empathy also should not be viewed as some “touchy-feely” squishiness, and empathy is certainly not an autonomatic tendency to “sympathize” with anyone before their court who finds themselves in distress; rather, empathy involves the capacity to put oneself in the place of another, in order to better understand how they found themselves in the circumstances that bring them to judgment. In other words, an empathetic judge is not (necessarily) a lenient judge, nor is it axiomatic that an empathetic judge would always support affirmative action policies.
Recall the words of Matthew 7.1: “Judge not, lest ye be judged.” I don’t view that as a admonition to let the wicket go free, or to some sort of moral relativism. Rather, I see it as a call to be humble in the use of the power of judgment, so that we might avoid leaping to unfair and irrevocable judgments. Matthew 7.1 should remind us that we are all sinners; in short, is not Matthew 7.1 is a call for… dare I say it… empathy?
Comment by Tyson Wynn on May 5, 2009 at 4:35 PM
I don’t want to get into a huge thing here, but is there some particular reason that Matthew 7:1 seems to be the Left’s favorite Scripture? (For some, it seems to be the only Scripture they know and view as authoritative). I mean, I debate with some of them on issue after issue, sometimes supporting my positions on moral questions (read: abortion) with Scripture, often to be mocked and ridiculed.
Christ was obviously speaking about personally judging others without first having applied the same standard to ourselves.
The point and purpose of the justice system is to pass judgment. It should be done fairly and impartially based upon a system of laws rather then the empathetic whims of an activist judge.
We may differ on what President Obama meant. The proof will be coming quickly and its highly likely a liberal activist will be the nominee. That’s what he meant by empathy.
Comment by RSU Prof on May 6, 2009 at 9:31 AM
Tyson, I have never mocked you for making an argument based on your religious views, and I think we have no disagreement on the import of Matthew 7.1. I would go on to note that many passages in Scripture have multiple interpretations, and many have pretty straightforwardly liberal implications.
I also agree that justice is best served when it is fair and impartial. I would quibble, however, with the opening sentence of the third paragraph: the point and purpose of the justice system is to produce just outcomes, which certainly involves passing judgments that may either condemn or exonerate. It requires discernment to determine which. You call that “the empathetic whims of an activist judge.” I disagree.
As you say, the proof will, no doubt, be “in the pudding,” to use the metaphor.
Comment by Tyson Wynn on May 6, 2009 at 1:12 PM
For the record, I didn’t mean you about the mocking.
Comment by RSU Prof on May 8, 2009 at 7:55 AM
Tyson, thank you for clearing me of the charge of mockery of religious justifications for political positions (though I am no doubt guilty of that particular sin on myriad other issues
).
I was reading the Washington Post this morning, and in an article on the nomination process I came across this quote:
“Wendy Long, chief counsel of the Judicial Confirmation Network, a small Manassas-based group that has been active in conservative judicial battles, immediately pounced on the remark. ‘What he means is he wants empathy for one side, and what’s wrong with that is it is being partial instead of being impartial,’ said Long, a former clerk to Justice Clarence Thomas. ‘A judge is supposed to have empathy for no one but simply to follow the law.’”
The quote from Ms. Long aptly illustrates the problem I have with this whole debate over empathy. First, I doubt that Ms. Long has access to Obama’s thought processes, and so I question her ability to accurately forecast what Obama “means” in opposition to the actual words he spoke.
Second, Ms. Long — I believe falsely — infers that Obama “means” empathy in a one-sided way, and as an indication of “partiality” in judging. She then argues that impartiality necessarily requires a bar on empathy.
I think that is incredibly wrong-headed. Empathy, as I attempted to state earlier, should not be confused with sympathy, but is rather an attempt to identify the motivations and state of minds and circumstances in which a person or persons find themselves. An empathetic judge should be empathetic toward all sides of a conflict in seeking out the fullest understanding what brought a real-world situation into a courtroom. Empathy, in that sense, is at the heart of what impartial judging should be all about. Ms. Long’s hackneyed view of impartiality doesn’t circumscribe judicial discretion; it eliminates any latitude for the application of reason. That’s not a recipe for good judging, and I doubt that there are too many actual members of the legal profession who would agree with her descrioption of impartiality.
For the record, Scalia has been far more activist in pursuing conservative preferences over the past ten years than Stevens, Souter, Breyer or Bader-Ginsburg. But ultimately, this isn’t a debate about judicial activism. We can lament the fact that conservative and liberal judges often feel compelled to impose judgments that have ideological implications, but that’s the world in which we live: we now have two very distinctive and ideological jurisprudential philosophies at work within the legal profession, as illustrated by the fact that we have the American Bar Association and the Federalist Society. And seldom shall the twain ever meet, I’m afraid.
We should be focusing on the qualifications of the people Obama wants to nominate. Failing that, perhaps we should agree to confine ourselves to the strictures of Scalia’s “originalism,” and not read into Obama’s statements about the criterion he would use to nominate candidates for the Supreme Court too much more than he actually says.