Empathy on the Bench?

President Obama’s now famous “empathy” criterion for appointments to the Supreme Court is, in my opinion, nothing more than a veiled reference to a personal philosophy of liberalism.  In fact, I think it is diametrically opposed to the kinds of qualities a judge should embody. 

Judges are the voice of the law.  And the law is incapable of empathy.  Empathy is a personal quality that inevitably veers from the law.  The very reason we have law is to avoid situations where empathy dictates how society should respond to a situation.  The law is what it is: solid, stable, unwavering, unflinching, impartial, no respecter of persons.  The law ensures that empathy does not pervert justice.  

As Ann Coulter has recently pointed out, empathy is often selective.  And I think that is necessarily so.  Minorities will likely empathize more easily with other minorities, women with other women, white men with other white men, and so forth.  That fact is simply human nature. 

And that is precisely why we have the law.  The law does not recognize skin color or gender (or, perhaps I should say that ideally it should not).  The law does not cater to one group or another.  The law does not empathize.  It simply pronounces.  And the reason justice is blind is because the law pronounces the same for every kind of person.  It gives no preference to one group or another.

Apparently, the President’s nominee for the next Supreme Court vacancy, Sonia Sotomayor, is an empathetic person.  In fact, she is so empathetic that she is quite confident that a Latina is, overall, a bit more capable than a white man at rendering good judgments.  Her empathy even extends far enough to deny qualified firefighters a promotion that they earned because the promotion would not have included any black firefighters who did not earn the promotion.  Liberal empathy for the minority often results in discrimination against the majority.  And this is unjust.  Reverse racism is still racism.  And if Judge Sotomayor were a white man who had said the kind of thing about Latinos that she, a Latina, has said about white men, she would have no chance, absolutely none, at Senate confirmation. 

She is obviously a gifted, intelligent woman with a long list of impressive accomplishments.  But that kind of intellect in the service of a warped idealogy is doubly dangerous.  Darth Vader was so scary not just because he was directed toward the Dark Side, but because he was so darn good at what he did: his command of the Force was masterful.  A top notch intellect, saturated with liberal empathy, is probably the worst combination for the Supreme Court.  People like Judge Sotomayor can pervert justice and subvert the Constitution with enough intellectual prowess to make it look and sound eminently reasonable, at least to the person who has not ears to hear. 

UPDATE: Charles Krauthammer and I apparently think alike, although he obviously thinks more deeply and clearly, and he expresses himself so much better (though I promise I did not read his column before writing the above).  Read his column especially for the details it provides about what Frank Ricci, one the firefighters denied a promotion for which he qualified, went through in order to get that promotion.  Thankfully, Ricci and his fellow firefighters still have hope that the Supreme Court will likely find in their favor.  And, ironically (as Krauthammer points out), Judge Sotomayor will then shortly join the Supreme Court, the very body that will have overturned her previous ruling.       


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