Empathy

You have to give President Obama credit.

He explicitly defined "quality of empathy" as "an essential ingredient for arriving at just decisions and outcomes…we need somebody who's got . . . the empathy to recognize what it's like to be a young, teenage mom; the empathy to understand what it's like to be poor or African American or gay or disabled or old." It might be the first time the word has been used specifically in this context, but the notion that one needs to “arriv[e] at just decisions and outcomes” is not; this was how then-President Johnson referred to “the next stage of civil rights” in 1965: “not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result.”

“Empathy” is a catch-all; in this case it doesn’t even have to be a code.

Obama may be correct in applying the term “empathy” as far as noting than no judge can be completely impartial, Justice Roberts’ when he comparison of judges to baseball umpires calling balls and strikes notwithstanding (especially since every baseball fan knows that every umpire employs a different strike zone). In fact, they are being equally disingenuous.

In fact, Obama’s 2007 statement that "the issues that come before the court are not sport” completely misses the point. In the current American political zeitgeist, that’s exactly what they have become. I’ve described this notion in various ways, from calling it “Acquisitionism” to comparing it to an NFL with only two teams. However, the notion of Empathy vs Impartiality—or, to put it in the political terms bandied about most regarding judges, Activism vs Constructionism—forced me to come to temrs with a new concept.

Justice may be blind; in the U.S., judges never are, and this can be attributed to our adversarial system. All judges are lawyers and act as such, even if they’re not supposed to. They have now also become politicians. Furthermore, they have been activist since Marbury v. Madison, and “legislated from the bench” since at least Brown v. Borad, but probably before. It has also been shown that “constructionism” regarding the Constitution is oxymoronic at best, when one sees how the same document can be used to uphold Plessy v Ferguson and its diametric opposite, Brown v Board, over a period of less than 60 years.

When one gets beyond all the partisan rancor, a look at the scorecard indicates that “partisan” judges get confirmed, usually by sizeable majorities. The most contentious appointment to have been confirmed was Clarence Thomas’ in 1991, and that had more to do with his alleged misbehavior than his propensities toward “natural” law and disavowal of the affirmative action process than got him into to law school in the first place. One could even make a case that Robert Bork was rejected not because he was an insufferable far-right moralist (which he was) but because he showed himself to be absolutely politically tone deaf. No one was going to give him points for being consistent. For what its worth, one should also remember is that the most “activist” Court since World War II (if not ever) was led by a former Republican Governor—Earl Warren—who had been appointed by a Republican President—Dwight Eisenhower.

The only empathy we need to have is for people who actually believe that the judicial process is supposed to be above all this. And we shouldn’t have much.