President Obama has said he wants his replacement for retiring Supreme Court Justice David Souter to be "'someone who understands that justice isn't about some abstract theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives,'" Washington Post columnist Ruth Marcus writes in an opinion piece. Obama also has said that the "'quality of empathy'" is an "'essential ingredient for arriving at just decision and outcomes.'" According to Marcus, this call for a "quality of empathy" is a "red alert for conservatives," who fear Obama will appoint an "activist judge" who would rule based on partisan views. She notes that Steven Calabresi, a law professor at Northwestern University and co-founder of the Federalist Society, said in a Wall Street Journal opinion piece before the election that Obama's "emphasis on empathy in essence requires the appointment of judges committed in advance to violating" a judge's oath to rule with equal justice to all people. According to Calabresi, Obama is advocating to "tear the blindfold off, so the judge can rule for the party he emphasizes with most."
Marcus writes that she also would "be on the barricades" if she thought Obama was "advocating for a pick-your-favorite-side approach." However, Obama's position "reflects a more thoughtful, more nuanced understanding of the judicial role," as opposed to Chief Justice John Roberts' analogy that likens a justice to a baseball umpire. Marcus continues, "Like its downscale cousin, the dictate that judges should 'interpret the law, not legislate from the bench,' the judge as umpire trope is fundamentally misleading," adding that if the correct conclusion "was always available to a judge who merely thinks hard enough about it, we could program computers to fulfill the judicial function." The most important Supreme Court cases require a judge to bring "life experiences" to the bench, as well as knowledge of the rule of the courts, and finally, "as Obama put it, 'a broader version of what America should be,'" Marcus says.
Marcus writes that Obama's "most controversial formulation of the empathy argument came in a 2007 speech to Planned Parenthood." Obama said, "The issues that come before the court are not sport. They're life and death. And we need somebody who's got ... 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." Marcus writes that having the "'empathy to recognize' should not determine the outcome of a case, but it should inform the judge's approach," concluding that a justice's "blindfold is a useful metaphor for impartiality. It's not a fixed prescription for insensitivity, or for obliviousness to the real world swirling outside the arid confines of the courthouse" (Marcus, Washington Post, 5/6).
Reprinted with kind permission from nationalpartnership. You can view the entire Daily Women's Health Policy Report, search the archives, or sign up for email delivery here. The Daily Women's Health Policy Report is a free service of the National Partnership for Women & Families, published by The Advisory Board Company.
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