A couple of weeks ago David Brooks shocked the egg-head universe by announcing the end of his infatuation with President Obama. He expressed disappointment that “the White House has decided to wage the campaign as fighting liberals.” Brooks “believed Obama when he said he wanted to move beyond the stale ideological debates that have paralyzed this country.”
In his latest column, Brooks discusses “The Limits of Empathy,” and, maybe I’m reading too much into what he wrote, but it seems to me that Brooks may have wanted readers to recall President Obama’s famous “empathy standard” for appointing judges. According to Brooks:
Empathy makes you more aware of other people’s suffering, but it’s not clear it actually motivates you to take moral action or prevents you from taking immoral action . . . . It influences people to care more about cute victims than ugly victims. It leads to nepotism. It subverts justice; juries give lighter sentences to defendants that show sadness. It leads us to react to shocking incidents, like a hurricane, but not longstanding conditions, like global hunger or preventable diseases.
I do not posses the expertise to evaluate Brooks’s claims, except to say that vetting judicial nominees on the basis of their ability to empathize with select circumstances undermines the rule of law. For those who have forgotten, President Obama made the following remarks when announcing his vote against the nomination of Chief Justice Roberts:
In those cases, [the truly difficult ones,] adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
That lawless standard is not some middle-of-the-road populist throw-away line. He reiterated the standard at a campaign event before Planned Parenthood in 2007, and used some variation until it became obvious that he was going to get clobbered every time. It is the articulation of a vision for the judicial branch and our legal system that subjugates the law and the Constitution to the political and policy whims of judges.
That vision did not originate with the Hope and Change Tour. President Obama inherited it from his progressive forefathers, who disdained the vertical and horizontal separation of powers that prevented them from enacting the sweeping reforms the science of government and its attendant “experts” deemed necessary. So Brooks should have known that certain “stale ideological debates” were very interesting to President Obama, even back when it seemed like the new administration would help us all begin the world anew again.
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