05 May 2009

Picking Empathy Over the Constitution

When considering his first nominee to the Supreme Court, President Obama made his intentions clear: judicial empathy matters more than fidelity to the Constitution. According to Forbes, Mr. Obama believes that “We need somebody who's got the heart to recognize--the empathy to recognize what it's like…” After that, fill in the blank. With anything and any time. And it need only last a moment. Like a kind thought while passing someone in a hallway. Like a wave from a car window. Like a sentence fragment.

Courts are supposed to interpret and uphold the law of the land, to deal justice based on those laws which are enacted by the legislature and signed into law by the executive. Judges are not supposed to make law themselves. Yet time and time again, from carbon dioxide to changing the definition of marriage, the US has seen individual judges, or groups of them, effectively create law and policy.

Purposely bringing “empathy” into the discussion would take this activism to a whole new level. Under the “empathy” rubric, judges may side with a complainant simply because…well, they feel for the complainant. The convenience – for the judges, that is – would be that their judgments, their empathies, would not necessarily set precedent. Their “empathies” may simply change from case to case, from plaintiff to plaintiff.

Sense a road to corruption here?

The great thing about defending and protecting a piece of paper – the Constitution – is that it does not change just to make someone, or itself, feel better. It simply is; it is the law of the land that we must live up to. “Empathy” in the judicial branch will do nothing but drag the Constitution down into the cultural, political winds, where it will be whipped around like a windsock.

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