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How Does It Work?

Steven Calabresi, the co-founder of the Federalist Society, asks some interesting questions:

Should federal court of appeals and district judges decide to apply or not to apply the Supreme Court precedent of Roe v. Wade based on whether they empathize with fetuses or with women seeking abortions?

Should federal prosecutors decide to bring or not to bring indictments in close cases based on whether they empathize with or dislike an accused defendant?

Should General David Petraeus and the Joint Chiefs of Staff follow President Obama’s directives and orders based on whether or not they empathize with or dislike the President?

Should citizens filling out their tax returns decide what to do in close cases based on whether they empathize with or dislike the federal government?

His point is well taken. The president mouths pablum about “empathy” as a great asset (if not a qualification) for the Court, but how does this work in practice? Judges don’t write opinions declaring “We find the petitioner utterly compelling and an American success story and therefore. . .” So are we to believe that Sotomayor and other “empathetic” judges are supposed to make up fake reasons for their decisions while making sure the “right” party wins? That doesn’t seem right.

But if Sotomayor is billing herself (or accepting the billing) as the empathy judge, maybe we should hear for whom she has empathy. Let’s hear what parties, what hard luck cases she has a soft spot for. Otherwise, how can we be sure she meets the empathy standard?

Oh, you say, this is all silliness and not what the courts are all about. Then what exactly is all the blather about empathy mean? If it’s simple bias for liberal interest groups, the president and his supporters should be honest. If it’s nothing more than “awareness of the impact of the law on real people” then anyone who reads the news, not to mention has been a judge, gets that — and it hardly qualifies one to serve on the Supreme Court.

Let’s be clear what is going on here. The president wants a “safe” liberal vote on the court. He wants to satisfy a key constituent group. He doesn’t have an activist Scalia whose brainpower is going to wow the country. So he’s selling empathy — and in the process, revealing contempt for the rule of law. I suspect he’s overplaying his hand and only riling up the opposition. But we’ll see what the nominee has to say for herself and what we learn along the way.


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