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Using empthy as a criterion for a Supreme Court nominee

Jul 23, 2009 My thoughts on...

As the end of George W. Bush’s presidency drew near, many of us here in America began to speculate about the possible retirement of at least one Supreme Court justice once Barack Obama took office as his successor. And it didn’t take long for that to happen. Just a few short months after Obama was sworn in, Justice David Souter announced his plan to retire from the high court.

Of course we all expect the new President to choose a liberal to replace Souter, and that’s fine. After all, every sitting President is more or less expected to choose a nominee who shares his judicial and political philosophy. But as the selection process trudged along, Mr. Obama made a statement that sent chills down the spine of us conservatives. He said that he intended to pick someone who expresses “empathy” for others.

On the surface, an attribute such as empathy might sound like a good thing for a judge to have, but in reality that isn’t the case at all. A judge (or Supreme Court justice in this case) is morally and constitutionally bound to decide the cases brought before him/her in accordance with the law of the land, not his/her own “feelings” about a particular case. Empathy and sympathy have no place in the decision making process in regards to the outcome of a court case. Which party should prevail is supposed to depend entirely upon the applicable laws, not on which party the judge thinks should win. Empathy and sympathy do have a place in the courtroom, but only during the penalty phase (which takes place after the case has been decided on the legal merits).

Sometimes the proper decision in a case can appear to be unfair when viewed through the lens of emotion, but it is still the right decision as long as it is in accordance with the laws in force at the time. Yes, some laws are inherently flawed or unfair in my opinion, and they need to be changed. But it cannot be left to a judge (or Supreme Court justice) to make a decision that goes against the law or the Constitution, no matter how unfair it might seem. The legislature is responsible for “making law”, not the judiciary. Think about it for a moment. If judges were allowed to ignore the law and the Constitution when making their rulings, our society would be in a perpetual state of chaos!

No judge should legislate from the bench, especially the ones who sit on the Supreme Court. By using empathy as a criterion for a Supreme Court nominee, President Obama demonstrated either a complete lack of understanding of the constitutional role of the Supreme Court, or a complete willingness to ignore it. And both of those possibilities are quite chilling indeed.