To put it simply, I don’t empathize with the empathy-driven decision to appoint an empathetic judge, on the basis of her empathy, to a branch of government that is supposed to rule free of subjective feelings, such as empathy. Oversaturated with empathy yet? I thought so. You had better get used to it, though.
Change was Obama’s catch phrase for the election, but empathy is apparently his new catch phrase for selecting the Supreme Court nominee, Sonia Sotomayor. The man is a marketing genius, I tell ya. Too bad he didn’t go down that road, instead.
In its heyday (circa 2008) ‘change’ was paraded around on backpacks, t-shirts, car windows, and shiny buttons (frequently by those not old enough to vote) without any real examination of what it meant. Likewise, the ‘empathy’ standard seems to be accepted without significant objection. But, I don’t ever mind being a dissenting opinion.
As an advertised ‘scholar’ of constitutional law, I’m surprised Obama isn’t more of a ‘scholar’ of constitutional law. Let me explain. As outlined in Article I of the Constitution, Congress is granted the authority to create law, so long as it falls under the (not so wide) umbrella of that same Constitution. In Article II, the President is granted the power to administer and enforce that law. And, in Article III, the Supreme Court is given the authority to review those laws for constitutionality, right? No? Really?
Actually, the Supreme Court is never given the power to review laws for validity under the Constitution of the United States. Chief Justice John Marshall took it upon himself to establish that precedent in Marbury v. Madison (1803). In truth, the only role of the Judicial Branch is ruling on cases brought to them, under the strict guidelines of the Constitution.
Now, I don’t expect that Barack Obama went to every single class, every single day, while attending Harvard Law. Everybody takes a sick day now and then. But, I’m almost certain the role of the judiciary would have come up at the lunch table, sooner or later.
Still, his primary criterion for selecting a Supreme Court Justice was empathy. The sole purpose the Supreme Court, even when reviewing laws (which is now common practice, thanks to the all but illegal maneuver by John Marshall), is ruling under the strict guidelines of the written Constitution. That being said, Obama’s logic on this matter is severely flawed. If the goal of the Supreme Court is to rule as objectively as possible, why would a subjective personality trait be touted around as credible resume material for a potential justice?
Obama and his media (yes, I said his media) repeated profusely that Sonia Sotomayor has ‘life experience’ and has ‘overcome hard times.’ While that makes for a great humanities piece on Oprah, it doesn’t add anything to her ability to rule objectively from the bench. If anything, it makes her more susceptible to ruling against the proper, constitutional choice in favor of her own sympathy.
President Obama, for such a decision, should be selecting someone who can prove a documented history of ruling by the law, without promoting a personal agenda one way or the other. If they happen to be an ‘empathetic’ person (which Sotomayor might very well be), that’s great. But they had better possess the skills to do the job, first and foremost.
I am not condemning empathy in general, because it’s an admirable quality in a person. Nor am I arguing that it should disqualify a person from such a post. So, if empathy is the President’s best sales pitch for Sotomayor, he might want to consider a new product.