Wednesday, May 06, 2009

An "Empathetic" Justice System

From the Washington Post...

Should the judge be an umpire or an empathizer?

Chief Justice John Roberts memorably likened the judge to a baseball umpire, dispassionately applying existing rules to call balls and strikes.

President Obama is more, well, touchy-feely. As he weighs a replacement for retiring Justice David Souter, the president said, he wants "someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives." That "quality of empathy," he said, is "an essential ingredient for arriving at just decisions and outcomes."

This is red-alert talk for conservatives. "Those are all code words for an activist judge who is going to . . . be partisan on the bench," Utah Republican Sen. Orrin Hatch warned on ABC's "This Week."

Even before the election, Northwestern University law professor Steven Calabresi, a co-founder of the Federalist Society, was already at Defcon 4. In a Wall Street Journal op-ed, he argued that Obama's "emphasis on empathy in essence requires the appointment of judges committed in advance to violating" the judicial oath to do equal justice to rich and poor. "To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most."

I admit to a bit of wincing at the word "empathize," with its sensitive-new-age-guy aura. If I thought Obama was advocating a pick-your-favorite-side approach, I'd be on the barricades, too. But his position is not anything like this absurd caricature. Indeed, it reflects a more thoughtful, more nuanced understanding of the judicial role than Roberts's seductive but flawed umpire analogy.

Like its downscale cousin, the dictate that judges should "interpret the law, not legislate from the bench," the judge-as-umpire trope is fundamentally misleading. Of course judges are supposed to be neutral arbiters of the cases that come before them, ruling on the merits of the claims rather than the sympathy evoked by one party or the other. Of course judges are bound by the text of legislation, the words of the Constitution, the weight of precedent.

Yet if the right answer was always available to a judge who merely thinks hard enough, we could program powerful computers to fulfill the judicial function. That's not possible -- not, anyway, in the cases that matter most. Those inevitably call on the judge to bring to the task his -- or her -- life experiences, conception of the role of the courts and, as Obama put it, "broader vision of what America should be."

Obama's most controversial formulation of the empathy argument came in a 2007 speech to Planned Parenthood. "The issues that come before the court are not sport," he said, disputing the umpire approach. "They're life and death. And we need somebody who's got . . . 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."

Read the rest here.

This is scary folks, very very scary. The only good news is that his pick is unlikely to alter the ideological composition of the court. Justice Souter was a dyed in the wool liberal activist judge. He will almost certainly be replaced by one of a similar bent. But what happens if something compels an unexpected retirement on the part of Justices Scalia or Thomas?


Anonymous said...

As if "conservative" judges aren't dyed in-the-wool activist judges.

You've accepted, unthinkingly, the notion that the U.S. Constitution is some sort of Holy Writ, that must be followed as originally conceived. It was conceived in the 18th century- long before such recent notions as that slavery is immoral, women are an inferior species, etc; etc;.

John (Ad Orientem) said...

As far as the law goes, the Constitution is indeed holy writ. Certainly times and opinions change. There is a mechanism for dealing with these changes. It's called "amendment." But you see the Congress and the legislatures of the states (popularly elected representatives) are supposed to do the amending, not unelected judges.

Yes there have been some instances of rightward judicial activism which I strongly deplore. But such has been comparatively rare. It is liberals who discovered and abused the courts as a means for advancing their agenda items which they could not get through democratically elected legislatures. This sort of thing (whether done for the right or the left) is extremely dangerous to the idea of the rule of law.

It reduces the law to whatever those in power at the moment wish it to be. Only original intent as the guiding principal of jurisprudence can prevent the reduction of our courts into some sort of political super legislature which can arbitrarily rewrite the law whenever it wishes.

Christ is risen!

John (Ad Orientem) said...

In the last paragraph above "reduction" should read "elevation."

Ed said...

Many, many people held in the eighteenth century that slavery was immoral. For that matter, so did many people in the second century...

Also, I think it is quite rude to say that the author of this blog is "unthinking" about his beliefs and positions. I've never met the man personally, but that is certainly not the impression I get from reading his blog.