Wednesday, May 27, 2009

Empathy to the Devil

What are the most important qualities for a Supreme Court Justice? Clearly a powerful intellect and grasp of the law joined with an understanding of the limits of the judicial role (that judges interpret and apply laws, they don't make them) are paramount. At least that's what our fearless leader said - until he also mentioned that the life of the law is not logic, but rather experience (drawn from Oliver Wendell Holmes).
Ah, that's right, when the president told us how he was going to choose his nominee to replace the retiring Justice David Souter, he mentioned that one of the requirements was "empathy" - for aggrieved parties, one assumes.
This delicately worded "but" at the end of an otherwise-reasonable pronouncement simply vacates the initial premise: that judges don't make laws.

So, what the president told us he would do - and what he now has done - is to nominate to the Supreme Court a person who would be intentionally biased - both before hearing the facts and arguments of a case as well as after. What, after all, would empathy matter should the decisions be based merely on facts and law? Perhaps a decision might go something like, "I'm sorry we couldn't decide in your favor, but we have to actually base our decision on the merits of the case." That would be all well and good. Instead, it appears we will be treated to decisions more in the mold of, "While plaintiffs failed to prove their case or to even present credible evidence, we feel sorry for them, and thus decide in their favor."

My delight at Souter's retirement is already beginning to fade.


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