Obama's inclusion of "empathy" as an important quality in a Supreme Court nominee has sparked a battle of talking points from both sides. Conservatives, including RNC chair Steele, have jumped on the word as pre-justification for their opposition to any Obama nominee to the court who might come before them. Steele (video here) and others have equated having empathy as a judge to deciding by feelings. A quick trip to the dictionary reveals that these people are simply confused (if we take them at their word). More likely they are conflating empathy with emotion; empathy is defined as: the ability to identify with or understand another's situation, feelings or motives. Is it not vital that a Judge--whose decisions and opinions will influence the manner in which our laws are applied in our lives--understands the situations of those to whom the laws apply?
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Though it seems that Steele and his brethren might merely be trying to touch upon latent sexism which equates emotion with weakness, especially in anticipation of Obama's possible nomination of a woman...that is another discussion entirely; one which I don't wish to get bogged down in because it's entirely based on assumptions and inference. The issue I find most relevant, and most worth expending energy on, is the value of the SPIRIT of the law vs. the LETTER of the law.
Talking to Fox News for a piece on Obama's empathy statements, Wendy Long, legal counsel to the Judicial Confirmation Network (who clerked for Justice Clarence Thomas) had this to say (emphasis mine):
"(Obama) thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law."
First, I'd like to give everyone the opportunity to appreciate the irony of Wendy telling us what Obama actually meant when he said what he did, while trying to convince us that you can't take laws at anything other than face value. This irony actually illustrates my later point, as well as being delicious.
Moving on..
[If you have empathy for both sides then that's the same as having no empathy at all.]
...is it really the same? It seems like it could be true, if empathy were touchdowns, and legal decisions were football games. Then again, legal decisions are not abstract mathematical equations on the page. Adding E to both sides does not have a net effect of zero. Here, let's insert the meaning of empathy to clear things up: having understanding for the situations of both sides is the same as not understanding either of them at all. That's obviously not true. In fact, being unwilling or unable to relate to either side of the argument seems like a terrible way to come to an equitable resolution.
Ms. Long later says:
"The best way to have empathy for people and the best way to have empathy for our Constitution is to appoint judges who will rule based on the law and to have empathy, if you will, for the law only and to rule based on the law,"
Long shows either her misunderstanding or her disregard for what empathy means here. One cannot have empathy for a law, or the Constitution. One cannot put oneself in the place of a document; the concept just doesn't make any sense. And yet, I think I understand what she was trying to get across here...despite her disregard for empathy, I will show her some, and for the sake of discussion try and put myself in her shoes.
The concern that I think Ms. Long is trying to tap into here is the conundrum of trying to transform a law on the page to a law in practice. Especially difficult, complex, controversial, or contradictory laws pose great challenges in this respect, and these are the arguments which find themselves in front of the Supreme Court. She also evokes the iconic imagery of the court to illustrate her point,
"That's why Lady Justice is depicted as blind-folded. Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."
but once again, I think she is confused. Lady Justice is not blind because she is cold and lacks understanding, she is blind to represent that she lacks BIAS; all are equal before justice--whose role is to restore balance (thus the scales). Imagery aside, the role of the Supreme Court is to act as arbiter of the laws; not as an abstract exercise in deductive reasoning and analysis of technical language, but as a check on those who would create laws which are inherently unfair or those who would seek to apply laws such that they infringe upon the rights of others (whether they be proprietary or civil rights).
This brings us to the argument at hand--to apply the "Spirit" or the "Letter" of the law as a Juror on our nation's highest court. Some would take the tack of arguing the merits of one versus the other. I think this allows conservatives too much leeway in establishing the bounds of the argument. It is not between adhering to the law, or making assumptions about its intent--assumptions are unavoidable. In cases tried before the Supreme court, the letter of the law is not clear. They are often cases in which the letter of one law may contradict the letter of another. And, in some cases the letter of a law may not exist within the bounds of reasonable expectation.
What the cases that reach the Supreme Court illustrate is the fundamental imperfection of laws and the human limits of those who write them. When crafting a law, a legislator cannot possibly foresee all potential situations to which it may apply and all future consequences it may bring about. If it cannot be made perfectly clear to what situations and circumstances a law is applicable, and what the effects are of applying it, then it is impossible not to make assumptions of intent when rendering decisions regarding the law in real life. The argument is between whether one should take into account the real world consequences of a law, or to interpret it in abstract--in a rhetorical vacuum.
Another fundamental principle regarding our laws and those who create them is that they are supposed to serve the public interest. This is the basic purpose of our entire government, including the Supreme Court; to serve "We the people". In light of this, the argument over whether real world consequences for citizens should be taken into account when interpreting our laws seems like a no-brainer. How could we not demand empathy in all of our judges?