Mr. Obama's choice of a replacement for retiring Supreme Court Justice David H. Souter is hardly surprising.  "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook," the President stated.  "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."  He described this attribute as "empathy".  Sounds impressive, doesn't it?

But what really is judicial "empathy," and how does it work?  Is it a vital quality for a judge to possess?  Consider the simplest, most mundane example.  An investor goes to a tax sale, where a house is being sold to pay the owner's delinquent tax bill.  The fair market value of the house, let's say, is $60,000, but the investor purchases it for $20,000. The taxing authority sells the property and collects unpaid taxes, while the investor purchases it for a third of its fair market value.  Moreover, the deadbeat suffers the loss of a portion of his estate.  Not bad, huh? 

Let's further surmise that an eighty-five year old woman, the deadbeat's poor grandmother, lives in the house and has been paying nothing to him for the privilege.  Yet she does not, unfortunately, fit into the investor's plans for the property.  So he telephones her and sends her a letter, requesting that she vacate.  He receives no response.  He then requests his attorney to write her a letter, demanding that she leave the premises. This step too proves futile. Finally, the investor authorizes a forcible detainer action to remove the woman from the property.

He and his attorney, having meticulously abided by the law, appear before the court on the date set for hearing.  The judge, wouldn't you know, has empathy for poor old ladies?  He understands that the woman who is before the court cannot "make a living and care for" herself without financial assistance.  He further understands that she "feels safe" in her present home, but will feel threatened if she is tossed out on her ear.  He desires that she not be "victimized" by the law nor experience it as her "adversary".  So, after pondering the matter, he decides that this octogenarian deserves a break.  Instead of summarily ruling on the matter in accordance with the dictates of the law and, thus, informing the tenant that she has no right to occupy the premises and that she must find another place to reside, he announces he will "take the matter under advisement."  Weeks pass while the woman lives in the home free of charge.  Finally, in an obvious attempt to protect her, the judge announces with an unbelievably straight face that he has decided "this is really a 'trespass to try title' and not a 'forcible detainer' action." He rules against the investor. The investor has little choice but to appeal.

Months elapse. When the appeal is one day away from being heard, the investor receives word from his attorney that the tenant has filed bankruptcy and that he is stayed from proceeding with his appeal. Several weeks later, the parties and their attorneys appear before the bankruptcy court and are chastised for taking up the court's time with such "a trivial matter." But, to his credit, the bankruptcy judge looks straight into the eyes of the woman's "legal aid" attorney and warns, "I want this problem resolved today before you leave the courthouse, or I will know why." Finally, the woman agrees to a judgment of contempt against herself, conditioned upon her not vacating the property within 10 days. The investor does not insist that she pay attorney's fees or rentals for the time she has unlawfully occupied the home, since the bankruptcy court has demonstrated a very short fuse with the case.  So the investor is out $7,500 in attorney's fees, $5,400 in rentals, $500 in court costs, and has suffered the delay of his plans for refurbishing the property and re-selling it.

This story is true.  It happened once upon a time.  Many similar events occur each and every day here in Mañanaville. "Why do they occur?" you ask.  Let me tell you why:  because a judge sanctimoniously takes the law into his or her own hands and does so in the holy name of "empathy"!  This term, if I may be so blunt and brazen as to say so, is nothing more than a euphemism for partiality and lawlessness.  The first question that Mr. Obama should have been asked, following his statement that empathy was a criterion in his search for a Supreme Court justice, is:  "Empathy for whom?"

The role of any judge is to apply the law and, in the event there is a gap somewhere in it, to fill it in as conservatively as possible, without meandering too far outside the lines.  Appellate court justices, especially those seated on the Supreme Court, are always ready and willing to define policies within the interstices of the law. Yet, more often than not, Supreme Court justices embrace a far more radical policymaking role than even this.  Remember the Lockner and Dred Scott cases, as well as Roe v. Wade, a threesome which comprise blatant judicial policymaking?  In an appalling power grab, the Court decided in Lockner that a New York statute curtailing the daily and weekly hours of bakers was violative of the Fourteenth Amendment.  Never mind the fact that determining the maximal number of hours that employees can work had always been the business of the state legislature. Just as outrageously, the Court decided in Dred Scott that, notwithstanding the Missouri Compromise, there could be no valid federal anti-slavery statute within the United States.  In the same vein, building upon the newfound right to privacy set forth in Griswold v. Connecticut, the Court in Roe discovered a correlative right to abort an unborn child.

Empathy is not an attribute that I trust in judges. It has very little to do with the judicial process and, in fact, only clouds it.  For Sonia Sotomayor, pictured above, empathy will amount to a license to engage in the kind of identity politics that we have come to know so well since Lyndon Johnson gave us "affirmative action."  As a justice on the Second Circuit Court of Appeals, Sotomayor upheld a lower court decision sustaining the city of New Haven's refusal to grant promotions to firefighters on the basis of their passing a job-related examination.  The reason?  Well, minority applicants failed to pass it; therefore, the test results had a "disparate impact" upon them.  This is nothing but reverse discrimination, or "empathy" according to Mr. Obama.  Never mind the fact that Frank Ricci, who is not part of a protected (and preferred) minority and who is handicapped with dyslexia, studied hard for the examination against overwhelming odds and passed it, but was refused promotion. Yes, ladies and gentlemen, this is empathy at work!  But dare not ask against whom!

Speaking of identity politics:  congratulations to our beloved president for choosing a nominee certain to satisfy Hispanics, women, and gays in general.  What a marvelous trifecta for democracy and victory for America!

May 27, 2009