Practical definition: judicial empathy

Posted by Marc Hodak on May 3, 2009 under Politics, Practical definitions | Be the First to Comment

President Obama said he was looking for someone who has “empathy for ordinary Americans” in a Supreme Court justice.  I was taught that the role of judges in our system of checks and balances was to interpret the law.  The legislature makes law.  Empathy is a good thing in lawmakers.  Laws affect everyone, and one should appreciate their effect on others when creating them.  The executive implements and enforces the law.  There are lots of ways to apply rules, and we’d like to think that they are being implemented in the most humane and reasonable way possible.  Judges interpret the law.  What does empathy mean in the context of interpretation?  Here’s what he meant:

Judicial empathy:  Ignoring the law to achieve an outcome the judge desires.

You will note that is more or less the same as the definition of judicial activism.

Senator Specter (R then D-PA) might be instructive on this point, explaining why a blatantly discriminatory approach to selecting judges would work best:

We have a very diverse country.  We need more people to express a woman’s point of view or a minority point of view, Hispanic or African-American, so that somebody who has done something more than wear a black robe for most of their lives.

I would like to know what the woman’s point of view is with respect to:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.”  Is there a Hispanic or African-American way to read:  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause?”

Specter is a liar.  Given a choice between Janice Rogers Brown and any of a passel of liberal white males, the sharecropper’s daughter doesn’t have a chance with the Democrats on the Senate Judiciary committee, and he knows it.  Neither would a conservative Hispanic against a liberal white male.

Senator Leahy proposes an even more disingenuous standard.  He’s looking for “somebody who can reflect the feelings of real Americans.”

As opposed to the Americans on the other side of the political debate, no doubt.