June 7, 2009

Empathy and Justice

By Lloyd Brown

In his letter explaining why he voted against the confirmation of John Roberts as Chief Justice of the Supreme Court, Barack Obama gave us a fascinating glimpse into the wonderful world of liberal logic.

The reasoning boiled down to this: Roberts was a highly qualified judge. But in some cases, he sided with the "strong" instead of the "weak."

"The bottom line is this: I will be voting against John Roberts' nomination . . .," Obama, then a senator from Illinois, wrote.

As he did in his appointment of Sonia Sotamayor to the court, Obama cited a compelling need for "empathy" by a Supreme Court justice.

Because of his alleged tendency to vote on the side of the strong, Roberts lacked sufficient empathy, in Obama's view. Sotamayor, who has said she believes Latino women rule more wisely than "white men," and who believes the courts are "where policy is made," is in the president's opinion loaded with empathy.

Obama said in 2005 that the law gives judges guidance in only 95 percent of the cases, and he worried about the other 5 percent.

"In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," Obama said. "That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

For the sake of charity, let's overlook perspectives on how the world works. Liberals have not a clue how the world works. They passionately believe the unbelievable: that all people secretly long to give up their freedom and sacrifice their own best interests for the good of the collective.

Let us focus instead on empathy and the curious idea that the "weak" are always right in litigation, while "strong" equals wrong.

Obama did not explain how he determined who was weak and who was strong but he chose an unfortunate example, to wit: "whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions..."

In balancing rights, do the made-up rights of a strong, healthy adult woman trump those of nature's weakest - an unborn child?

Given the liberal proclivities, however, it is safe to assume that to most leftists the "strong" are those with what the rapacious plaintiff's bar calls "the deep pockets."

Under the weak v. strong theory, if a con man walks into a supermarket and pulls the common tactic known as "slip and fall," feigning injury, and then files suit, he is entitled to become a millionaire - because he is weak and the supermarket chain is strong.

That sounds suspiciously like what candidate Obama called "spreading it around."

It is true that William Blackstone, whose Commentaries is a basic source of the common law of England from which American law is derived, allows for interpretation when the law is unclear. It is necessary where "law does not define exactly, but leaves some discretion to the wise judge," Blackstone wrote.

But, notably, he went on to say, "the liberty of considering all cases in an equitable light must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind."

Judges take an oath to deliver verdicts impartially, based on the preponderance of the evidence, including legal precedent. When judges don't like the result those factors bring about, and use empathy or any other emotion to achieve a different result, they are breaking that oath and are unfit for office.

Lloyd Brown is a retired editorial page editor and occasional blogger.