Supremely audacious
The best defense is a good offense. President Obama and Judge Sotomayor have been playing it aggressively.
We can’t say we weren’t warned that this was the type of justice planned for an Obama administration.
His now famous rhetorical skills often mask his real intent, but on this issue, he’s been clear.
Obama says law and precedent should determine rulings in “95 percent of the cases,†but in the really hard and important cases, justices should go with their heart. “In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.â€
Now, keep in mind that 5 percent of Supreme Court cases isn’t everything, but it’s nearly 100 percent of what we argue about as a country. For the hard cases Americans care most about, Obama says empathy should rule.
So, what’s wrong with empathy?
Well, nothing. Empathy is a fine thing, and all decent people should employ it, including Supreme Court justices.
But Obama has something specific in mind when he talks about empathy. He wants the justice’s oath to in effect be rewritten. Judges must administer justice with respect to persons, they must be partial to the poor, and so on.
This is a radical departure for judicial philosophy at the highest levels. Rewriting both the oath and the Constitution, in effect.
Obama and Sotomayor both assume that a firsthand understanding of the plight of the poor or the African-American or the gay or the old will automatically result in justices voting a certain (liberal) way. “I would hope,†Sotomayor said in 2001, “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.†This is not only deeply offensive, it is also nonsense on stilts. Clarence Thomas understands what it is like to be poor and black better than any justice who has ever sat on the bench. How’s that working out for liberals?
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I think empathy does in fact play a part in the justice system. When an 75 year old lady in Florida comes before a judge in traffic court and after pleading her case says, “I ask you, your honor, to withold adjudication” (surely a word she was coached to use by her lawyer son), and the judge does use his discretion, he is using empathy. When we, as jurors, are asked to bring our life experiences into the jurors room to get to the truth, we are all bringing our life experiences with us, poor and rich, college educated and laborer, sons and daughters of immigrants as well as the sons and daughters of the Confederacy. I believe that George H.W. Bush spoke of Clarence Thomas’ empathy and Justice Sam Alito, in his confirmation hearings, spoke of his immigrant background giving him a certain perspective on judging cases involving immigration issues. Being brought up in the South South Bronx of NYC brings different life experiences than being brought up in Freehold, New Jersey or Niles, Illinois. A woman sees things differently than a man and brings a whole set of different life experiences. We as human beings cannot set aside our empathy or our life experiences. In fact they are very important to our judicial system. No justice can be totally impartial. I guess that’s why there are nine.