In a previous posting Conservative Activism on the Supreme Court, I recount what candidate Obama said during a presidential debate on how he would pick judges:
I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.So we have to ask whether empathy and compassion are what we want from our judges. But first we have to define the terms.
I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.
understanding of another’s feelings: the ability to identify with and understand another person’s feelings or difficulties
sympathy for the suffering of others, often including a desire to help
So compassion just takes empathy one step further in the form of wanting to help. Of course it is this wanting to help that the conservatives object to the most. They feel that judges should make their decisions strictly based on the rule of law rather exercising discretion based on personal beliefs or desires. And for Supreme Court Justices, the rule of law is the Constitution.
This is pretty clear cut when the Constitution explicitly addresses a certain issue. But our Founding Fathers were not willing and able to address every conceivable issue in the Constitution. So they left it to the Supreme Court to interpret the Constitution where its authors were silent on a subject.
So what’s this all have to do with empathy? The people we whom we have the strongest empathy are often the best indicators of our personal and political philosophies. And for those who become judges, it gives us an indication of how they are likely to rule in certain situations where the Constitution is silent or unclear. So while President Obama says he wants a judge with empathy, it is safe to say that just about everybody working as a judge has empathy — it’s just a matter of whom a judge has the most empathy for!
For a historic example, there is the issue of slavery. This story describes an experience of a young Abraham Lincoln.
At age 22, Lincoln floated down the Mississippi River on a raft to New Orleans and worked his way back on a steamer. On that trip, he saw a group of African-American slaves chained together "like so many fish upon a trot line." That pitiful scene helped forge his opposition to slavery.So we know where Lincoln’s empathy was on the issue of slavery. But since the Constitution was silent on the issue of slavery, the Supreme Court in 1857 showed where their empathy was on the issue of slavery in the infamous Dred Scott decision.
Dred Scott v. Sandford, was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not legal persons and could never be citizens of the United States. It also held that the United States Congress had no authority to prohibit slavery in federal territories. The Court also ruled that because slaves were not citizens, they could not sue in court. Lastly, the Court ruled that slaves—as chattel or private property—could not be taken away from their owners without due process.Of course one can argue that since the Constitution did not specifically give rights to blacks that the Supreme Court was simply doing its duty in ruling in favor of the slave owners. Indeed, Dred Scott was effectively overturned as a result of the Thirteenth Amendment (abolishing slavery) and the Fourteenth Amendment (establishing citizenship for former slaves) which were passed only after a bloody Civil War fought over slavery.
And it wasn’t until 1920 and the Nineteenth Amendment that women were finally given the right to vote! So yes, people by way of amendments can eventually be granted the equal rights that our Founding Fathers did not specifically address when writing the Constitution. But making changes by amendments to the Constitution is painfully slow and difficult by design. Is it showing enough empathy and compassion to those who are suffering from discrimination to force them endure it for perhaps generations before having their rights finally addressed?
Since the Constitution cannot explicitly address every issue that comes before the Supreme Court, by necessity Justices have to make some decisions based on their personal philosophies of what is right and just. We don’t call them judicial opinions for nothing!
So when viewed in this way, selecting judges based on where their empathy and compassion lies makes perfect sense. Most of us feel that the Supreme Court (along with the presidency until Obama) has been dominated by white males for far too long. Diversity to include women and minorities on the Supreme Court has generally been considered a proper goal to achieve by recent presidents of both parties.
I would like to conclude with Gwen Ifill’s spot-on observation made while appearing on This Week in response to those who are uneasy about Judge Sotomayor’s ‘empathy’ because of her ethnic and female background.
I never hear people say that for a white male, that it's identity politics if he is shaped by his white maleness and by the things that affected his life, and whether privilege affected his life. That's never considered to be a negative. It's only considered to be a negative when ethnicity is involved or race is involved or gender is involved.