In his statement on the retirement of Justice Souter the president included these perfectly predictable sentiments:
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 as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.
Once again he is confusing the public about what it is that judges do. The making of laws, which is a legislative function, is all about “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.” Federal judges decide what those laws mean and whether they conflict with the Constitution. If we want gurus on how we make our living we should appoint economists to the high court, not judges who are spectacularly ill-equipped and untrained to make pronouncements on that topic. Courts are mandated to divine the meaning of our laws and Constitution.
And then of course we get the “empathy” appeal. Again, a perfectly reasonable quality to look for in legislators and even presidents, but not judges. How do we know how empathic they are? (More charitable giving than Joe Biden?) And who gets that sort of empathy — the unborn or the mother, the property owner or the state, the child rapist or his victim, the business or the employee? You see, empathy is a code word for favoring criminal defendants, plaintiffs, labor and other groups which happen to match up with the liberal policy agenda. It’s a peculiar sort of empathy, otherwise known as bias for litigants based on their identity rather than the merit of their claims.
Legal conservatives have their work cut out for them. No, they likely won’t defeat the nominee sporting a portfolio of empathy and brimming with ideas about how we can make a living. They don’t have the votes in the Senate. The real task is to remind the public that the foundation of our democracy rests not in investing judges with the power to search the landscape for empathy recipients, but to ensure that policy decisions are made by the elected branches of government within the parameters of the Constitution.