President Obama says he seeks “empathy” in a Supreme Court justice. His first nominee, Judge Sonia Sotomayor, says a “wise Latina woman” would generally make better decisions because of “the richness of her experiences” than a white man.
Those views reveal the extent to which political and personal agendas have supplanted the rule of law in selecting nominees.
If “rule of law” sounds cold and callous, remember that the alternative isn’t “rule of empathy” but “rule of men” ‹ the hierarchy most prevalent throughout human history.
Rule of law requires that laws be written, accessible, understandable and uniformly applied. Hence, Lady Justice is depicted as blindfolded, unable tosee the identity of those before her, and holding scales on which she weighs the merits of the opposing sides.
Where rule of man predominates, the law means whatever king or dictator or court wants it to mean on a given day. Historically, this form of corruption favored those with money or power, even when their case was unjust. Those who undermine the law today do so to reward political constituencies, like racial, gender or other interest groups.
“(Chief Justice John) Roberts said he saw himself just as an umpire,” Obama said in 2007. “But the issues that come before the court are not sport.
“We need somebody who’s got the heart ‹ 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.”
Surely this President to whom profound intellect is routinely attributed understands that the view of a judge as umpire has nothing to do with sports (although he seems strangely enamored of Sotomayor’s ruling in a baseball labor dispute).
In comparing the role of a judge to that of an umpire, Justice Roberts understood that, just as an umpire’s job isn’t to determine the outcome by bending the rules, a judge’s duty isn’t to pick winners and losers by selectively applying the law to some but not to others.
Legendary Justice Oliver Wendell Holmes understood this, too, and famously explained that his primary responsibility as a judge was “to see that the game is played according to the rules, whether I like them or not.”
While Obama purports to seek judges who will empathize with the downtrodden, he seems unwilling to consider that sometimes the downtrodden break the law.
What then? Similarly, a corporation or business owner with deep pockets should be afforded the same legal protections as a bartender or schoolteacher.
Though American justice has its flaws, the standard inscribed on the Supreme Court building – “Equal Justice Under Law” – was once our common goal. Obama, however, wants the courts to selectively tip the scales: “I view that quality of empathy as an essential ingredient for arriving at just decisions and outcomes.”
In the very next sentence, he seamlessly performs a remarkable contradiction, claiming he will “seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process.”
When it comes to Jedi mind tricks, Yoda has nothing on Obama.
Sotomayor doesn’t even pretend that impartiality is a worthy goal. Citing “basic differences in logic and reasoning,” she argues that “our experiences as women and people of color” make “the aspiration to impartiality is just that – it’s an aspiration[.]”
If a jurist nominated by a Republican president suggested that women and minorities are incapable of impartiality, that nominee would be excoriated – and properly so. Clarence Thomas, Janice Rogers Brown and Miguel Estrada, among others, demonstrate that judges of all backgrounds can choose to apply the law impartially, while others choose to favor particular groups and distort the law accordingly.
President Obama understands that his nominee has little interest in presiding like an umpire or in impartially applying the law. He also understands that this undermines the rule of law. He just doesn’t want you to understand.
Mark Hillman served as senate majority leader and state treasurer. He is now Republican National Committeeman for Colorado, and a Centennial Instsitute Fellow. To read more or comment, go to www.MarkHillman.com