Judicial Empathy


With the resignation of the hermit-like justice from New Hampshire, David Souter, the president must nominate a replacement to the Supreme Court. A former law professor at the University of Chicago, President Obama has mentioned that the next justice must have some empathy for the condition of average people. Immediately the hard core right denounced the president, for to them empathy is a code word for liberalism. I never thought that empathy was a vice in judges, for it shows that the law exists for a well regulated society, but people do not exist totally for the law. But the right wing blogosphere and FOX network have already begun criticizing the president’s nominees even though he has not nominated anyone.

I guess to them empathy means pro-choice, anti-torture, and pro-employees in labor disputes. It is better to be pro-government, pro Wal-Mart, pro-oil companies. That is what the law is—an instrument to protect the wealthy and powerful interests in society. I am not sure that empathy, or fellow feeling, is a virtue that only liberals can embrace. What about Adam Smith (in his “Theory of Moral Sentiments”), Edmund Burke, and Abraham Lincoln? They were conservatives who wrote and spoke to the decent feelings in all of us. But the angry right is now on a tear about Obama; they just can’t get the American people to hate the new president, even though they try to link him up with socialism and other horrors. Recently, one conservative congressman from Texas, Joe Barton, denounced college football since it does not have a championship bowl like NCAA basketball. It is obviously communistic he said –to the wonderment of the athletic administrators. I have known a lot of jock college administrators in my career, and I can vouch that I never heard them once quote Karl Marx. In any case, this is obviously a matter for the high courts to adjudicate. That is why the right choice for the Supremes is so important.

It is funny that when the Republican judges have nominated right wing ideologies to the high court in the last twenty years, they rarely made much of a fuss over getting true scholars of the law in place. They have promoted conservatives, even right winger disciples of Ayn Rand whose opinions are frightening in their implications. Yet they insist that they are committed to the original interpretation of the Constitution, as written by the Founding Fathers in 1787. In their opinions they really do not seem to know what the Fathers said, or how they too were often ambiguous deliberately in their wording to get that document pass thirteen states’ scrutiny. They do not realize that the Founders were revolutionaries who expected that the Constitution would, in Washington’s words, last a generation if they were lucky. It is only because we have chosen to fit its noble principles in with changing realities that we still revere it. And some of the very clauses that the hard right hates—due process, equal protection, freedom of religion and speech, freedom of assembly, the sanctity of habeas corpus—has been denied by its advocates and upheld by the courts, both liberal and conservative members alike.

Emphatic judges are weak crybabies in robes, liberals who do not respect law and order—or so the stereotype goes. They are from ethnic quotas, not true scholars of the law. They make law and do not interpret it, like the Court’s recent discovery of an absolute right to bear arms—a right not a part of American life before last year! No empathy there.

The problem with the Supreme Court is that we have a life time tenure guarantee, in a court that should have a limited non-reappointable term. Ten years is quite enough for Supreme and lower court judges, but that is not what is in the Constitution.

We need people who can adapt to the times, who respect our rights, and who do not place the high court above the very people it should protect. I guess that is empathy.

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