Empathy and Indifference in the Choice of Supreme Court Justices

Broadcast on WAMC Northeast Report, May 26, 2009

Even before the nomination just this morning of Judge Sotomayor there has been controversy about what kind of person the new Supreme Court justice should be.

When Justice Souter announced his resignation, President Obama said:

I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek 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 — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

That word “empathy” has driven the commentary. Here’s the Republican response from Sen. Jon Kyl, the Senate Republican whip: “given the fact that the president has already signaled that he wants to appoint someone who has empathy and will decide cases based on that, I think you have to reserve” the right to filibuster the nomination.

Let’s understand what Kyl and the Republicans want for the Court. The absence of empathy is indifference. That’s what the Court showed Lilly Ledbetter when it decided that it didn’t matter if there was no way for a woman to bring a suit for discrimination in pay. Indifference is what the conservatives that satisfy the Republicans show when they decide that it doesn’t really matter if we execute an innocent man, as they did most recently in House v. Bell a couple of terms ago.

Deciding without empathy means that the Court assumed that our laws and our Constitution were also written without empathy. Having no empathy means that these justices who are the Republicans’ favorites wrote indifference into law, they wrote indifference to enforcement into the civil rights laws and they wrote indifference to justice into the due process clause.

What Senator Kyl and those Senate Republicans that choose to follow his lead are trying to do is to impose their insensitivity onto the Constitution. There is no such thing as a reading of the majestic phrases of our Constitution, like due process of law, that are cut and dried by precise legal formulas that can be laid at the doorstep of the Founders of our country. So their complaints about what President Obama and the Democrats want to do, is actually an attempt to foist their own insensitive views on the Constitution, on the Founders and on us.

The reality is that the members of the Court cannot avoid having to make moral judgments in which concern for the impact on the parties and the rest of us counts, or doesn’t. Even justices as conservative as Rehnquist and Scalia have made that point – Here is Scalia quoting from an earlier Rehnquist opinion:

“Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.”

Scalia continued:

Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.

Again quoting Rehnquist, Scalia added:

“Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

This Republican claim that only Democrats and their nominees bring their own ideas to their jobs as Supreme Court justices is hypocritical, and pure nonsense. The question is what kind of ideas they bring. Do we want justices who care about justice? As Benjamin Cardozo, one of our most honored lawgivers, wrote:

The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence. . . .

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