“Obama says empathy key to court pick” blares today’s Los Angeles Times’ headline. No, this is not one of those made-for-TV fake newspapers, but the real thing. Jurists around the world must be spinning in their respective locations. Empathy is just about the last thing a Supreme Court Justice needs, having no place in the application of jurisprudence. Justice must be blind, impartial, unemotional, and detached from partisanship of any kind. That our President ranks empathy — “the intellectual identification with or vicarious experiencing of the feelings, thoughts, or attitudes of another” — at the top of his list of qualifications for Supreme Court Justice guarantees he will make a horrid selection to replace David Souter.
The only thing scarier than the Times’ headline is the story’s substance. Virtually every quote attributed to Barack Obama reeks of sentimentalism, naivete, and a profound misunderstanding of the purpose of judges working at any level. Confusing the Legislative branch of government with the judicial, Obama revealed his view of justice. “It’s also about how our laws affect the daily realities of people’s lives…” That’s a standard for the House and Senate to apply, not the Supreme Court. If Justices are to decide legal issues on the basis of “whether they can make a living and care for their families” Article I of the Constitution becomes irrelevant.
Statements like those above and that Obama is looking for a justice who “has a sense of what’s happening in the real world…” may be good campaign lines but are divorced from the realities of judicial logic. The President said, “I will seek someone who understands that justice isn’t about some abstract legal theory…,” a declaration 180 degrees off the mark. Abstract legal theory is precisely what justices are to concern themselves with. That Obama doesn’t want someone who will apply careful reasoning to existing laws and precedents guarantees he will select a justice who will emotionally legislate from the bench. America has suffered through too much of that already.
There is an even darker side to the Times’ piece. Implied throughout is that white males need not apply for this most important post. Indeed, the six possible replacements for David Souter include five white women and one black man. Besides framing his selection on some ethereal emotional notion, Obama will exclude candidates based on race and sex. Would Americans accept such a winnowing process for brain surgeons or airline pilots or NBA players? Of course not. Then why would we stand idly by when the selection of a more important person hinges on racial and gender politics? Is this the change we can believe in?
Choosing the best Supreme Court Justice – or the best doctor, pilot, basketball player, you name it – can only happen when considerations of race, color, gender, creed, or national origin are not applied. Throw in that bias, and add to it an infernal standard of empathy as the leading criteria, and you can bet your Roe v. Wade T-shirt the next Supreme Court Justice will be far from the best Americans could have had. One can only hope that the Republicans will fight tooth and nail to prevent Obama’s sure-to-be-inferior choice from ever being sworn in.
Posted by Jerry Pomeroy in Government Blunders, Obama Presidency