Judges: empathy or expertise?
Today's McClatchy story about Ruth Bader Ginsburg reprints a 2007 statement by then-candidate Barack Obama about selecting judges:
"We need somebody who's got the heart, the empathy, to recognize what it's like to be a teenage mom ... to understand what it's like to be poor or African American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
I don't know whether to worry or call BS.
Reading those "criteria" and thinking about the nine justices on the U.S. Supreme Court, I'd have to say the only one who even comes close to Obama's description is Clarence Thomas.
But Obama won't be nominating any judges like the conservative Thomas, who recognizes very well what it's like to be African American and poor but doesn't "empathize" in ways Obama might think he should.
What expectation does Obama create with these criteria, anyway?
I interpret them to mean that he wants to seat judges who will issue rulings more favorable to the kind of people he mentioned -- teen mothers, poor, African Americans, gay, disabled, old ...
Having "emphathy" is a required trait.
Is it?
What about dedication to the principle of equal protection? What about a deep knowledge of the law and a commitment to apply it as it was intended, without prejudice or partiality? What about the obligation to uphold the Constitution of the United States?
One can make a good argument that emphathy is a desirable characteristic for a trial court judge, who sees real people in the courtroom, hears their stories, gains an understanding of the particular circumstances of whatever conflict brought them there.
Judges at the appellate level look almost entirely at issues of law and procedure. They should not be prejudiced by undue consideration of personalities -- and certainly not by the individual characteristics of the parties involved such as race, economic status, gender, age, sexual orientation, what have you. To do so is to risk applying one standard to this person and another standard to someone else. Besides, defendants, victims, plaintiffs, respondents, witnesses don't appear in appellate courtrooms.
Will Obama nominate judges who are highly qualified practitioners -- like current Chief Justice John Roberts, whose confirmation then-Sen. Obama opposed -- or judges who satisfy some emotional criteria?
While I continue to wish Justice Ginsburg a full and speedy recovery, we likely will find out sometime during Obama's presidency.
Frankly, I hope that 2007 quote was just political BS.
Comments (6)
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Doug:
If we are truly a country of laws and not of men (or women) then our judges must be completely neutral (isn't that why they wear black robes?) and simply apply the law. A poor person and a large corporation must have equal standing before the law. (In an imperfect world, this won't always happen, but it should be the standard).
Unfortunately, we have too many judges who believe that it is their job to help someone out because they feel empathy or don't think it would be fair to apply the law as written. Justice Oliver Wendell Holmes referred to jurists who refused to take cases from the jury and render judgment when the facts so dictated as "lawless judges." Judges are servants of the law, not the law themselves.
Keep up the good work.
Paul Daniels
Posted on February 6, 2009 9:40 AM
Thanks, Paul.
To me, an example of this is when someone acts as his own attorney in court and is doing a bad job of it. A judge might, out of human compassion, feel sorry for someone digging himself into a deeper hole, but he cannot come down from the bench to level the playing field. The judge is supposed to be an impartial arbiter.
Posted on February 6, 2009 9:46 AM
Rather than just empathizing, I think Ruthie should have actually been a teenage mom. She should have been down on the corner, hangin' and bangin', (either men or women) rather than have her nose stuck in some textbook. She still could have got her GED and gone to lawschool at night after caring for her three kids by three different dads during the day, piece a cake! She could been disabled from a car accident she got into when she was f---ed up out of her mind one night or shot. She was just too sheltered. We need better rounded judges , no doubt.
Posted on February 6, 2009 10:14 AM
Ruthie was one of four liberal's on the court to disregard the Constitution's 200+ year position on the Second Ammendment! These partisn liberal fools can't even bring themselves to uphold what's been settled for a couple of centuries, as they squeal about Roe v Wade, unjustly determined in the 1970's as "settled law." the Supreme Court has become another liberal branch of the Demo-Rat party!
Posted on February 6, 2009 11:27 AM
I disagree, I think empathy is an important trait. Laws don't exist in a vacuum and the court must understand the effects of a law to really understand the law. Much of the court's work is determining if a law has violated someone's rights in some way, and sometimes such things aren't so easily objective.
I would also disagree that Roberts has been so objective. An example Ledbetter v. Goodyear Tire seems to have been an astoundingly bad decision legally that brought strange new interpretation of the law. The decision was made on partisan grounds. That's from what I understand, not being a lawyer. Of course, legislation has now fixed that problem.
Posted on February 6, 2009 11:30 AM
Empathy is fine but can't override impartial interpretation and application of the law. We can't give license for judges to favor parties with whom they have greater sympathy.
Andrew, you really ought to offer some evidence for a statement that Ledbetter was an astoundingly bad decision. The Supreme Court affirmed a ruling by the 11th Circuit Court of Appeals. Did that court also rule on partisan grounds?
I don't know whether the decision was right or wrong. It revolved around a technical interpretation of law. I suspect, at best the law was not clear. At worst, it wasn't written to provide the protection that the current congressional majority thought should be afforded. That being the case, the appropriate remedy was for Congress to clarify the law.
Posted on February 6, 2009 11:52 AM