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  • "What's an empathetic judge to do?"

    Heritage fellow Robert Alt writes in U.S. News:

    My late constitutional law professor once offered the following hypothetical about a fishing dispute that made its way to court. On one side were Native Americans; on the other, environmentalists. After a pregnant pause, he mused: “What’s a liberal to do?” Were he to teach the class today, he might well have asked, “What’s an empathetic judge to do?”

    As this hypothetical illustrates, empathy, the factor by which President Obama claims that he selects his judicial nominees, is highly subjective, and provides little direction for judges. In some cases, all of the parties are sympathetic. In other cases, none are. In still other cases, the law may be unambiguously on the side of a party who is less sympathetic.

    If empathy is the guiding principle, how is a judge to decide these cases? And how do we separate empathy from personal bias?

    Here, then, is a modest proposal: In choosing nominees, President Obama should seek judges who would apply the Constitution and the laws as they are written, and interpret them consistent with their plain and original meaning.

    Contrary to the frequent howls from the left, interpreting statutes and even the Constitution is not so difficult or arcane a task that judges need resort to tea leaves or to breathe subjective “life” into documents. Yes, in some cases this will lead to decisions that the judges personally consider bad policy. In these cases there is a corrective in the legislature, whose job it is—with apologies to Judge Sotomayor—to make policy.

    Not only is this the correct understanding of a judge’s role, it’s the one that resonates best with the American people. A November 2008 nationwide survey commissioned by the Federalist Society found that 70 percent of voters want judges who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” over judges who “will go beyond interpreting and applying the law as written and take into account their own viewpoints and experiences.”

    But Obama said recently that he wants judges whose personal preferences affect the outcome of their decisions. In a speech before Planned Parenthood, then-candidate Obama said: “We need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges.”

    President Obama’s nominee to the Supreme Court, Judge Sonia Sotomayor, takes this line of reasoning a step further, questioning whether it is possible for judges to overcome personal sympathies or biases “in all or even in most cases.” She even seems to think that ruling based upon these biases is somehow patriotic: “I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

    And apparently she finds the differences between ethnicities to be profound, in a way that most reasonable people will find profoundly disturbing. She infamously claimed that she “hope[s] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.” She also stated that physiological differences based on national origins “will make a difference in our judging,” and grants some credence to the idea that race or ethnicity may lead to “basic differences in logic and reasoning.”

    In light of these disturbing quotes, the question must be asked—and hopefully asked repeatedly by senators—will these stereotypes and identity politics inform Judge Sotomayor’s “empathy?” As U.S. Civil Rights Commissioner Todd Gaziano, responding to these claims, has stated: “[T]his is not a potential example of ‘reverse discrimination.’ At issue is the same, old, ugly racial discrimination and stereotypes as before—just in furtherance of different groups.”

    Among the images of justice at the Supreme Court is Themis, the famous statue of lady justice holding a scale while wearing a blindfold. She represents the role of a judge—someone oath-bound to impartially “administer justice without respect to persons.” President Obama and Judge Sotomayor’s fealty to identity politics clashes with this proper role.

    Senators must question Judge Sotomayor carefully to assess whether she can genuinely put aside her biases, or, as she seems to have done in the past, embrace them. The American people deserve to know whether she will serve the Constitution—or identity politics.

    Posted in Legal [slideshow_deploy]

    6 Responses to "What's an empathetic judge to do?"

    1. Michale, Orlando says:

      It's obvious that she will undermine the constitution as opposed to serving it. As offensive as her racial statement was, the "We create policy" comment gives away her activist style of interpretation. Unfortunately, I don't forsee her receiving any scrutiny in the judiciary committee (12-7 Democrat majority including chairman) nor the senate floor. Filibustering would be a moot point since they will easily motion for cloture with 20 votes, then subsequently envoke cloture with 60. Am I too doom-and-gloom here or is there an actual chance that enough senators will actualy grow a backbone and vote on principal instead of caving in to political expediancy and correctness?

    2. Mary watkins Alaska says:

      I think that it is a sad day for us, as a lot of them have been lately, when a President can pick a Supreme Court Judge, the highest Judge in the entire United States of America based simply on the fact that she is empathatic. I remember like it was yesterday when President Bush announced his pick in Judge John Roberts and how the Democrats absolutely put him on trial himself just because he was against abortion and a Christian man. They drilled him for hours about not interpreting the Constitution to fit his belief system and having to follow it to the letter. Then when the Democrats put Sonia Sotomeyer in, and President Obama says that the Founding Fathers words are outdated along with the Constitution and this woman will intrepret the law as she sees it not even going by what the Constitution states. That is just plain wrong, I dont care who tried this whether it be the Republicans or the Democrats : and to get away with it with no opposition from the other side is a travesty. It saddens me greatly to see the moral decline that we have all allowed to happen under the disguise of our own government making new laws up telling us it is in our best interest and it is only government control and absolutely not in our best interest. The definition of todays taxpayer is someone who pays the government their hard earned $$$$$$$$ to make laws against US!!!!!

    3. jr., Michigan says:

      obama and his minions are a joke!

    4. shirley, michigan says:

      Ask the Judge any question you may have been asked by a lawyer before being selected or a jury, Are you a bigot, racist? Can you be impartial regardless of your past experiences? Tell the truth, old great judge, and you are "OFF" the jury.

    5. Marsha, Wheeling Wes says:

      Justitia or Themis the Gods of Justice are supposed to be blind; They carry a scale in one hand and a sword in the other to give equal justice and equal administration of the law to all Americans.

      The Supreme Court Justices are to rule without regard of individual circumstances. Their rulings should only determine if the petition is viable under the constitution to be ruled on by the highest court and/or the petition abridges the constitution and rises to the highest court for rule. Laws that do not rise to a constitutional level should be deferred back to the lower courts and/or to the legislative bodies that should review and change the law as needed. Alexander Hamilton made it very clear in Federalist Paper No. 78 that Judges do not legislate from the bench and that was the intent of the separation of powers. Under the equal protection clause in Article IV Section 2 of the United States Constitution persons should be equally protected.

      It does not say if you have had a bad life or had to struggle we (the justices) will rule in your favor. It also does not say you are from a disadvantaged background because you have a square nose so we (the justices) will mold the law for you. How absurd if justices ruled like the two statements I just made. You would be unable to trust the Judicial system as a fare and unbiased system.

      Sonia Sotomayor’s judicial oath and the US Court’s Code of Conducts preclude the ability to use empathy. Empathy is an immense violation for a serving judge to use. Any judge that uses personal beliefs or persuasion, without regard to exactly the way the law reads in the constitution should never rise to the Supreme Court.

      I feel she must answer why she has used empathy in past decisions? This is a flawed judge.

    6. Thomas, northern NY says:

      Obama will sell out anything to get votes, including the Constitution. It's just an old document to him, as he pushes it out of the way to re-create the country in his OWN image of what it should be. This affirmative action crap has gone on for too long. Sotomayer proves that there is unlimited opportunity for all, if they have the ambition to pursue it. Of course, like Obama, everything was paid for by someone else. Sotomayer is principally an ethnic/racial thing. The actual victim will be the Constitution, and the further destruction of America.

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