Writing at SCOTUSblog, President Barack Obama laid out, with habitual banality, his criteria for choosing a Supreme Court justice. He did not use the word “empathy,” which figured so large in his prior statements on the subject, but he made the same case.
There will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment. That’s why the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times. That, I believe, is an essential element for arriving at just decisions and fair outcomes.
Here, the president is quite nearly quoting his own 2009 remarks:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It’s also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.
On the subject of “empathy,” he said:
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, or African American, or gay, or disabled, or old.
There are many reasons for congressional Republicans to stand firm in their opposition to confirming any Supreme Court appointment from Barack Obama this year. The main reason is political: Obama’s maximalist approach to presidential power can be met only by a similar response from the legislative branch. For example, it may (or may not, but, arguendo) be the case that President Obama technically has the power to usurp congressional authority by unilaterally enacting through presidential fiat an immigration policy that Congress has pointedly rejected. A decent respect for our constitutional mechanics, democratic norms, and the separation of powers would argue against his doing that, but he is determined to make the most out of every power that is technically his under the law. In the same way, it unquestionably is within the Senate’s power to decline to schedule a hearing or a vote on any given Supreme Court nominee. Under ordinary circumstances, it probably would not be wise or seemly to do so, but these are not ordinary circumstances: The Senate’s refusal to give the president the time of day may be unprecedented, but so is President Obama’s abuse of presidential power. The Senate would have been justified doing this years ago.
But, beyond that, the presidential blog post (what an odd thing to write!) and his previous statements remind us of something more fundamental: Barack Obama rejects the notion of the rule of law as such, and he nominates to the bench justices who also reject it, which is dangerous and corrosive.
Contrary to the president’s insistence, yes, the law is — or is intended to be — a set of abstractions, a neutral body of rules that applies equally to everybody, be they gay, straight, black, white, old, single mother, murderers, bounty hunters, desperados, mugs, pugs, thugs, nitwits, halfwits, dimwits, vipers, snipers, con men, Indian agents, Mexican bandits, muggers, buggerers, bushwhackers, hornswogglers, horse thieves, or Methodists. That is the beauty of the rule of law — and it is, incidentally, the only thing that makes the rule of law useful to the poor and the marginalized.
President Obama and like-minded thinkers (“thinkers”) believe that the law should be a respecter of persons for purposes of restitution, putting a thumb on the scale in favor of the poor, the powerless, minorities, etc. There is good reason to object to that on principle — you either believe in equality under the law or you don’t — but there’s a practical reason to reject that, too: If the law is a respecter of persons, you can bet that it will have outsized respect for persons of wealth and power. Consider all of the economic policy over the last 60 years that has been, in theory, aimed at “leveling” some imaginary “playing field” (one of the great examples of mistaking the metaphor for the thing itself) or raising blue-collar wages, or promoting manufacturing, or stimulating the economy, etc. Who actually benefited from all that? In almost every case, it was the powerful and the politically connected, and generally the wealthy. (The owners of Solyndra thank you very much for your investment in their well-being.) The powerless, above all, should want a rule of law that is truly neutral — it is their best chance at achieving real justice.
Our courts and law-enforcement institutions are imperfect, of course, and the law already is imperfectly applied. But we should not make a virtue out of those defects, or attempt to make a virtue out of them. Any president or judicial nominee who makes an argument from empathy – that it should matter to a judge who you are and what demographic characteristics you bear — should be understood as an enemy of the rule of law. Barack Obama has proven himself that time and again. Republicans are right not to give him the opportunity to do more damage.