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Supreme Empathy?

Speaking to a Planned Parenthood Conference in Washington, DC, in July 2007, then-Senator Barack Obama made the following observation with respect to the qualifications of Supreme Court justices:

"We need somebody who's got the heart, 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, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Some time later, the brilliant Thomas Sowell responded with this common-sense question:

Do we really want judges who decide cases based on who you are, rather than on the facts and the law? ... We are supposed to be a country with 'the rule of law and not of men.' ... Obama is proposing the explicit repudiation of that ideal itself. That is certainly 'change,' but is it one that most Americans believe in?

Well, with respect to the renewed fervor over hate crimes legislation, I would say that the liberal answer to Sowell's question is undoubtedly "yes." But that is a discussion for another post. Back to the subject at hand, in a follow-up piece published in The Wall Street Journal, Steven Calabresi noted:

Every new federal judge has been required by federal law to take an oath of office in which he swears that he will "administer justice without respect to persons, and do equal right to the poor and to the rich." Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.

No doubt progressives and liberals are thrilled at the prospect of a kindred spirit in the White House who is dedicated to undoing the legacy of the "White Injustice System." But before the celebration gets too far out of hand, they should ask themselves a simple question -- when the balance of power shifts again to the right (and it will, it always does) are they still going to be comfortable with a standard of "empathy," especially if a President Palin or a President Cantor decides to pick justices who empathize with the unborn, or the terminally ill or handicapped, or the victims of violent crimes, or with those who believe in enforcing existing immigration laws?

Article III of the Constitution is quite clear about the role of the Supreme Court:

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases ... the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The Supreme Court was not intended to be an arena for emotional appeals or social engineering. We had better hope that there are enough Democrats with a clear understanding of this basic fact to prevent President Obama from placing a social justice maverick in an office whose duties have been traditionally (though not exclusively) bound by the merits of a case, rather than its degree of political correctness.

More good reading at the Committee For Justice Blog, particularly their list of Ten Things To Expect From An Obama Supreme Court.


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Comments (17)

"We need somebody who's got... (Below threshold)
Bobbertsan:

"We need somebody who's got the heart, 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, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

So where's he going to find an 80 year old black lesbian with a club foot who is on welfare and got pregnant when she was 15?

Here's why you're doing not... (Below threshold)

Here's why you're doing nothing more than banging your head on the wall:

Neither party limits themselves by thinking they may some day lose power: they don't think they will lose power, they're more interested in grabbing what they can now and they think that in the event the other side does regain power, that they will be deal with that then,

Your arguments appeal to a very small slice of the population, the people who are more interested in 'procedure' over the end result. Most voters care about the end result and don't concern themselves worrying about the process of going from A to B. To illustrate, voters are more upset about 'abuses' on Wall Street than they are upset about Obama abusing the Constitution in limiting executive pay. Thus, Obama's pledge to take empathy into account is shorthand for saying that he's going to give people a justice who will give them the end result they want - and provided he positions his nomination as giving people what they want, there's not going to be a serious public backlash against his pick.

Finally, everybody - on both sides - rationalizes their rulings as being 'constitutional'... not the way you would agree but enough that they're not going to be shamed or pressured into backing away from doing what they want to be doing. You can scream all you want, but they're going to just ignore you.

"So where's he going to ... (Below threshold)
Heralder:

"So where's he going to find an 80 year old black lesbian with a club foot who is on welfare and got pregnant when she was 15?"

You owe me a new coffee!

It is indeed fortunate that... (Below threshold)
OLDPUPPYMAX:

It is indeed fortunate that leftists have no interest in the contents of the Constitution of the United States. Were it otherwise, decades of Supreme Court decisions grounded on "penumbras", reems of "hate crime" legislation and limitless dictates of Political Correctness would have been undone before they were done. Consider the carnage if the constitutional rights formerly guaranteed by that document were still in force! One might even be permitted to view terrorists as sub-human, homosexuals as practitioners of aberrant behavior and illegal aliens as being in the country--illegally! And then where would we be!

Wouldn't it be just swell i... (Below threshold)
James H:

Wouldn't it be just swell if Obama nominates Bill Clinton?

In all seriousness, I'm neutral on the empathy question. But I would like to see a Supreme Court nominee who has experience outside the judiciary, or at least outside legal academia. I think too much time spent in those particular ivory towers tends to blind a judge to the practical consequences of his rulings.

So where's he going to f... (Below threshold)
Matt:

So where's he going to find an 80 year old black lesbian with a club foot who is on welfare and got pregnant when she was 15?

I'm sure Oprah could help Obama find one. If not, she'd probably volunteer to play the part, just to help out you know.

"...homosexuals as practiti... (Below threshold)
hyperbolist:

"...homosexuals as practitioners of aberrant behavior..."

You need to make sure that in 2010, America knows that this is what your party stands for. See where that gets you.

80 year old black clubfoote... (Below threshold)
914:

80 year old black clubfooted lesbian activists please report to the White House for debriefing/delousing and new sob story biographies.

Bill Clinton could make a d... (Below threshold)
Matt:

Bill Clinton could make a decent Supreme Court pick. Morals aside, he is well educated, experienced, smart etc. It would make it much easier for Hillary to keep track of him as well.

I thought 'profiling' was a... (Below threshold)
GarandFan:

I thought 'profiling' was against the law. Guess it all depends on who's doing the profiling.

Personally, wanting to be 'all inclusive', I think it's time we had a gay gray whale on the Supreme Court.

You know, I was just thinki... (Below threshold)
DaveD:

You know, I was just thinking reading your post, it would give me untold pleasure to see someone like Thomas Sowell (or Walter Williams or Larry Elder) go one on one with Obama in a debate of these very fundamental issues. I like Rush but forget Rush in this case. I would like the average American to see that there are African-Americans who subscribe to a conservative philosophy and eliminate the racist card that liberals are so quick to use as an out for Mr. Obama when he is challenged on his policies. Sorry for going off topic but this president is basically an idiot.

Maybe in the name of "diver... (Below threshold)
Matt:

Maybe in the name of "diversity," Obama could nominate Alberto Gonzales? He's a minority, liberal and hates american civil liberties.

Gonzales is a liberal? Or d... (Below threshold)
hyperbolist:

Gonzales is a liberal? Or do you mean he liberally smeared feces all over the Constitution?

Gonzalez? Not a chance. T... (Below threshold)

Gonzalez? Not a chance. Ted Kennedy won't stand for Hispanics in powerful positions. They're "dangerous," remember?

> But before the celebra... (Below threshold)
Arthur:

> But before the celebration gets too far out of hand, they should ask themselves a simple question -- when the balance of power shifts again to the right ... are they still going to be comfortable with a standard of "empathy," especially if a President Palin or a President Cantor decides to pick justices who empathize with the unborn, or the terminally ill or handicapped, or the victims of violent crimes, or with those who believe in enforcing existing immigration laws?

Not a problem. When the balance of power shifts, so do the rules for picking and confirming judges. You should know that by now!

More banana republic thinki... (Below threshold)
Mitchell:

More banana republic thinking.

This is what you don't want in a republican democracy--judging "the person" versus the facts and law of the case.

Outrageous that a President, and one who ostensibly taught Con. Law, would utter such claptrap.

Most provocative debate I h... (Below threshold)
Heartwood:

Most provocative debate I have seen on the web lately.




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