Empathy Or Equality?

President Obama stated that one of the important qualities he is looking for in a Supreme Court Justice is "empathy". Empathy is a wonderful quality. Unlike "sympathy" where one actively participates in the feelings and emotions of another, empathy recognizes, understands and is sensitive to those feelings but remains detached. Where a sympathetic person might be expected to react emotionally, an empathetic person can be expected to react intellectualy. Empathy is a quality which is particularly important for social workers, case workers, disaster relief personnel, aid volunteers, medical practitioners, care-givers, and even community organizers. It can be useful in business as well, for human relations and customer relations. Empathy helps service-providers improve the quality of their service by understanding the feelings and needs of others.

For a judge however, empathy is not a particularly useful quality. The role of a judge is to determine the facts of a case through oral arguments and presentation of evidence, and then to issue a ruling. In the case of a jury trial, the role of the judge is to instruct the jury and to move the proceedings along to a point where the jury can issue a verdict, but let us set jury trials aside. In a typical case, a complaint is brought by one party against another, and the role of the judge is to determine if the complaint is valid or not, in accordance with existing law. The role of a judge is to interpret and enforce the law as it is written. The role of a judge does NOT include changing existing laws or creating new ones. Those responsibilities lie with the legislative branch of government.

The Declaration of Independence states: "We hold these truths to be self-evident, that all men are created equal." But how can this be true when it seems more self-evident that all men are created unequal? How can this be true when some are stronger, and some are weaker; when some are faster, and some are slower; when some are smarter, and some are not so smart? How can this be true where some are white male Protestants, and some are Hispanic female Catholics; where some are African-American Muslims, and some are Asian-born Buddhists? How can this be true where some are rich, and some are poor; where some are business executives, and some are day laborers; where some are celebrities, and some are nobodies? Clearly, the truth that all men are "created equal" can only be true in the context of one's standing before the Law. In the eyes of the Law, all men are equal and are to be treated equally. The Law is the great equalizer.

In this context then, the role of a judge must be to render rulings in a fair and impartial manner. That is why the statue of Lady Justice holds a balance in one hand, a sword in the other, and wears a blindfold over her eyes. The balance (or weighing scales) represents fairness; the blindfold represents impartiality; and the sword represents the ruling or judgment, with punishment if need be. That is why, according to 28 U.S.C. 453, "Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, __________, 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 __________ under the Constitution and laws of the United States. So help me God.”

Under what pretext then, can empathy be an important quality for a judge? How does empathy assist a judge to administer justice "without respect to persons"? Who is more likely to respect a certain person or group over another... the one with empathy, or the one without? How does empathy assist a judge to "do equal right" to the poor and to the rich? Will not the empathetic judge conclude that the needs of the poor are greater than the needs of the rich, and rule in their favor? How does empathy assist a judge to be "impartial"? Can a judge be "sensitive" to the needs and feelings of one person or group, and still remain impartial? Does not empathy by its very nature, make one more aware of one person or group to the exclusion of others?

Consider for a moment the example of a robbery case where an African-American male youth holds up a store owned by a Korean family. If the judge empathizes with the African-American male youth, how does that affect the ruling in the case? Will the judge think that African-American male youths are too often stereotyped, and that this should be taken into account? Will the judge think that African-American male youths typically live in poor neighborhoods, and that poverty should be taken into account? Or what happens if the judge empathizes with the Korean family? Does the judge know some Korean shop owners who have faced similar problems, and that this should be taken into account? Does the judge like Koreans over other nationalities for some reason? How does empathy help at all? The simple answer is that it does not help... at all... ever. It merely clouds the issue and skews the ruling.

The only conclusion one can draw then, is that there is no rational pretext for selecting a judge with empathy. It must be something else then... not necessarily logical... perhaps political. Perhaps Obama desires a court made up of justices who more closely resemble social workers, case workers, aid volunteers, care-givers, and community organizers than judges? Perhaps he does not want justices who administer the law fairly and impartially? Perhaps he wants Lady Justice to remove her blindfold and tilt her scales more heavily towards certain Democratic and liberal "target" groups, namely the poor, the uneducated, and people of color? Perhaps he has no regard for the Constitution because he doesn't like it? We know he wants to "remake" the United States. He said so during the campaign.

Perhaps Obama wants to remake the Constitution into what his own vision of it should be? He is arrogant enough to try. Perhaps he wants activist judges who will change the laws or write new ones, because it is easier to do that than to go through the legislative process, or to use the prescribed method for amending the Constitution? Perhaps it is a premeditated effort to subvert the Constitution and to usurp the power of another branch of government? In any event, it is not logical or rational... empathy rarely is. Empathy is about feelings and emotions and needs... not logic.

We would do well to learn from the laws of nature. Under 'natural law', correct actions are rewarded, and wrong actions meet swift punishment. Gravity is a natural law, and when you operate in harmony with this law, you can receive great rewards. Gravity can work for you or against you. The motion of electrons in a conducting substance under the presence of motive forces such as voltage and amperage, is also a 'natural law', otherwise known as electricity. When you operate in harmony with this law, you can receive great rewards. Electricity can work for you or against you.

However, if you break the law of gravity by walking off the edge of a cliff, you will be punished for it. Punishment is swift and proportional to the "crime". Falling a few feet can be painful; falling from great heights can be lethal. Death would be considered "capital punishment" for a serious infraction of the law of gravity. It is against the law of electricity to insert one's self into a conducting circuit. Doing so will result in the punishment of electric shock. Again, punishment is swift and proportional. The lower the voltage and amperage, the less grievous the "crime". Electrocution is "capital punishment" for severely breaking this natural law.

And these natural laws are truly "blind" in their impartiality. They are no respecters of persons. They act with equal impunity against man or woman; rich or poor; celebrity or nobody; persons of any religion, color, or ethnicity. These laws are also uniform and universal. They do not change randomly or at the whim of a new President. They apply equally to people everywhere. For all these reasons, such laws are well-respected and even feared. Rarely does anyone purposely intend to break a law of nature. And one is not likely to complain when others are punished or executed because they broke a law of nature. People may be saddened or grieve, but they generally do not complain. Natural laws are known, understood, uniform, and universal. People know the punishment for breaking such laws and are not surprised by it when it happens.

If only our human laws could be so uniform, universal, and well-respected. If only our judges could be so impartial. If only justice could be so swift.