So Good, I'll just reprint it

Thursday, May 28, 2009
On Empathy, Sotomayor, & Consequences
by Eric Von Haessler

If there is a problem with President Obama’s choice of Judge Sonia Sotomayor as his nominee to replace Justice Souter on the Supreme Court, it lay not in Sotomayor herself, but in the President’s criteria leading to her selection. In a recent interview held before announcing his nominee Mr. Obama stated he didn’t just want a jurist plucked from the Ivory Tower. While allowing that intellectual firepower was important he placed special emphasis on finding someone who also had, “a little bit of a common touch” along with, “a practical sense of how the world works.” To boil it down to one word, it was ‘empathy’ the President was most looking for in a potential nominee.

Empathy, the act of intellectually identifying with the experiences of another, is almost always a laudable human trait- almost, but not always. The ability to a walk a mile in another’s shoes bodes one well when cementing friendships and reinforcing alliances but it is always an abomination when applied to the interpretation of law. In fact, the application of empathy can’t help but to serve the corruption of law.

The statues of Lady Justice adorning courtrooms throughout the country most often depict a stern, but blindfolded arbiter. In her raised hand the scales are set evenly in anticipation of the coming weight of facts and evidence. In a lowered hand she brandishes the sword that will eventually cut one way or the other. The essential idea here is that the weight of the arguments made, not the adjudicators vision of the litigants, should be the only consideration before judgment is rendered.

When President Obama says he favors judges that not only stick to the letter of the law but also, “get a sense of how the law might work or not work in practical day-to-day living,” he is attempting to conjoin two principles that are mutually exclusive. It is not possible to both stick to and disregard the letter of the same law. Therefore, the President is explicitly stating that he believes there are times a Justice is morally bound to toss settled law to the wind in order to bring immediate aid and comfort to an individual litigant. This may feel good in law practice but it ain’t the practice of good law.

It is the purpose of legislators, not the bench, to facilitate the urgent redress of individual constituents. Politicians are elected and have to stand for reelection before those same constituents and that is why they are the proper constitutional ‘day to day’ representatives of the people before the powers that be.