Free Markets, Free People

empathy

Policy Maker or Neutral Legal Umpire?

Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?

If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.

He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

“Empathy” and “heart” do not equal “rule of law”.

Thomas Sowell distills the essence of the argument against Obama’s assertion:

Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.

Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.

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It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.

And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.

~McQ