While reading a favorite blog of mine (Doug Phillips), I stumbled across a link to an article discussing the President’s pick for Supreme Court nominee, Sonia Sotomayor. It got me thinking about the particular values of justice, and the consequences of “empathy” in judicial decisions. What is justice? Are there any invariant rules to its proper execution? The Judicial Oath words justice this way:
“I, __________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as (name of position) under the Constitution and laws of the United States. So help me God” (reference here).
This oath seems to define impartiality as equal right to poor and rich, etc. However, the President’s criterion for justice is best described by this statement from his campaign (which he has since reiterated):
“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… And that’s the criteria by which I’m going to be selecting my judges” (reference here).
The difference here is between “being” and “feeling.” The oath defines justice as an action or a state of being; namely, no person should be exalted over another in a case. Empathy is a feeling, and is vague in its ability to inform us of what true justice looks like. Note, the campaign quote does not tell us how that “empathy” will be acted out on the court. If anything, “empathy” for particular groups of people would seem to lead justices to partial and emotional decisions, rather than decisions based on objective facts about innocence or guilt. Surely, our liberty is directly influenced by our concept of justice, and the restraint of evil in society. If we muff justice, we muff liberty. We cannot afford to have an unclear “feeling” define such a fundamental concept in society.