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.

By the same token, elections should have consequences at every level of governance. One of the major duties any President is called upon to fulfill is the replacing of Supreme Court Justices that retire or pass away during their term of office. While I disagree with Mr. Obama’s philosophy of jurisprudence the time for that argument has passed.

By winning the last presidential election he and his party won the right to shape the court as they see fit. The constitution charges Congress with the duty to advise and consent but given that Judge Sotomayor has been a federal jurist for eighteen years it’s reasonable to assume she has the credentials for the job. Unless she is revealed to be certifiably insane the President has the right to expect she’ll be seated in a timely manner.

It is important for those who lose elections to refrain from efforts to defang the proper constitutional powers of the offices they’ve failed to win. The pendulum always swings back and when in power the former loyal opposition will not want to be restrained while trying to make their mark on the perpetual motion of governance. If winning elections doesn’t give the victors the right to govern from the point of view that animated them to run in the first place then elections soon become meaningless.

It is the proper role of those who disagree with the nomination of Sonia Sotomayor for the Supreme Court to double up their will to win elections in the future. If participating in elections at times doesn’t seem like enough ammunition for change, or the calendar of voting leaves you impatient for immediate change- it might do some good to consider that your current right to participate in the credible election of your lawmakers is more power than 99.9% of the people who have ever lived and died on this planet have enjoyed.

Stop pouting. Start persuading.