Copies of two comments I posted at BlogCritics in connection with the article are provided below:
Here is a link to an editorial in today's Boston Globe which points out, correctly I think, some of the reasons why the selection of a judge or justice on the basis of his particular empathies is a bad idea.
The oath required of Federal judges is as follows:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God."
It is OK for a judge to be particularly empathetic toward whomever he pleases -- the rich, the poor, the powerful, the weak, persons of color or those not of color -- however, he must not allow his particular empathies to play a role in doing his duty as a judge. We all have particular empathies. It is all well and good for his particular empathies to be part of a judge's private persona, to be left outside the courtroom just as should be his preferences for Fords or Toyotas, for Methodists or Roman Catholics, or for any side on the abortion controversy.
Federal judges are appointed rather than elected, and serve essentially for life rather than for a term of years. They are not elected legislators, and no matter how badly they may think the legislators screwed up, it is their proper function to substitute their views for those of the legislators in very few instances: where the law is unconstitutional or conflicts irreconcilably with a subsequently enacted law. I can think of very few* other valid bases for unelected Federal judges, or nine (or five) unelected Supreme Court justices, to substitute their personal views for those of the elected Congress which enacted a law and for those of the elected President with whose signature it became law. Nor can I think of any valid reason for judges to anticipate and thereby to attempt to preempt the role of the Congress and of the President by "enacting" new laws on their own -- no matter how greatly they may feel the need for such legislation.
I realize that some judges do permit their particular empathies to play a role in their decision making processes. Some judges take bribes and some drive while drunk. While very unfortunate and probably illegal, that does not make such things OK or even commonplace. To elevate candidates' particular empathies to positions of critical importance in the selection as a judge -- or worse as a very powerful Supreme Court justice -- damages the entire concept of equal justice under law. For a judge or justice, once appointed, to be guided by the empathies on the basis of which he was appointed would be even worse. If he adheres to his oath of office and leaves his particular empathies outside the courtroom, the consideration of his particular empathies in the selection process becomes an exercise in futility; if he takes those empathies into the courtroom, he violates his oath of office and the rule of law is, to that extent, emasculated.
Roger -- it is true that potential judges and justices are sometimes asked their views on current topics of controversy. They usually do not -- and certainly should not -- provide answers, recognizing that such questions are improper and that to answer them fully outside the context of a particular case and controversy would limit their ability to decide subsequent cases on the basis of the law and the facts then presented.
*There are some other instances as well. Courts can overrule administrative regulations where inconsistent with Congressional enactments, in effect or due to their mode of adoption. There are other similar instances. As far as I know, none detract from the points I am trying to make.
An article in Slate prompted me to think a bit more today about the meaning of empathy, as it is there argued the word was used by President Obama. According to the article, "empathy" is not a code for something else. I have no idea whether it is a code word or is not. However, words themselves have meanings, and the interpretation placed upon the word in the article and there attributed to President Obama is interesting.
"Webster's defines empathy as 'the experiencing as one's own the feelings of another.' Obama, in The Audacity of Hope, described empathy as 'a call to stand in somebody else's shoes and see through their eyes.' To Obama, empathy chiefly means applying a principle his mother taught him: asking, 'How would that make you feel?' before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.
[E]mpathy"at least as Obama has used the word"decidedly does not mean favoring only the poor, women, or minorities in every dispute. Again quoting from The Audacity of Hope: "Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision."
Pretty words, no doubt; but what does all of this mean? To the extent that it means understanding and properly considering all facts in a case which are relevant under the law, then I have no problem with it. Should the feelings, or the factual situation, of an impecunious widow about to be evicted from her pitiful hovel due to the non-payment of the agreed upon rent be relevant under the operative statute, then clearly those facts and feelings should be given due weight and possibly decisional significance. To the extent that they are not relevant under the statute, they should be given no weight at all, no matter how badly the judge may feel about it or how greatly he may feel the widow's suffering. That is the function of a very different branch of Government.
Assume a statute stating, "any person renting real property who shall fail to pay the rent due under and according to the terms as set forth in the rental contract to which he is a party shall, upon proper request and the presentation of relevant evidence to a court of competent jurisdiction, be evicted from said property forthwith." I know of no such statute, but assume with me that it is the law pursuant to which a judge must decide a case. The judge then has no discretion to consider the widow's personal situation, her feelings, or whether he would have written the statute differently had he had the opportunity to do so. He cannot properly put himself in the shoes of either the landlord or the tenant. He cannot properly put himself in the shoes of counsel for the plaintiff or for the defendant, no matter how badly either might feel were his client to lose the case. He simply has no warrant to rewrite the statute, to ignore parts of it, to supplement other parts in his judicial capacity, or to be guided by how he would feel were he on the other side of the bench as plaintiff, as defendant, or as counsel for either; or to "experience as . . .[his] own the feelings of" such others. To act upon such a empathetic experiences in his judicial capacity would violate his oath if he had taken an oath comparable to the one taken by Federal judges.
Legislators do have not only the discretion but also the obligation to think before they legislate, and when the implementation of a statute produces outcomes which they find offensive, to do something about it -- by repealing or modifying the statute, albeit prospectively. The electorate also has not only the discretion, but also the obligation as well, to see to it that their legislators do so. It is the function of a judge to apply statutes as written, not to make up for the all too often sloppy work of legislators or of the voters who employed them.
Judges and legislators are very different species, and to wish them to behave as though they were the same or even nearly so, or to perceive of their functions as the same or nearly so, grossly distorts the separation of powers and functions embedded in the U.S. Constitution. Judges are not called upon to "do good" according to their empathies or other lights; they are called upon to rule upon the disputes before them justly, in accordance with the statutes authored by others.