Courts Full of Empaths

"The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

-President Barack Obama

There are times when I find myself actually warming up to our President. Then there are times, many, many more times, when I have to tell myself that it's not about his charisma, not about how likable he may be. It's about who he really is and what he'll really do.

The so-called Empathy Standard is an example of how he truly intends to govern. Let's set aside for the moment that Mr. Obama is being pretty openly hypocritical on the question of how judges should rule. He said in 2005 that: The test is whether he or she (a judge) can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended. That statement appears to be in keeping with the ideal of judicial restraint, although I would have to add that every case should be decided on facts and merit and law alone in order to be more fully and correctly understood. Once beyond that, I must say that any standard which encourages, as this one does, judges and justices to rule with their heart and not according to the law are, at the very least, nonjudicial. At the worst, they are a threat to future of our republic.

We cannot have judges ruling on empathy alone: it is a short step after that to a land where law becomes transient, a mere passing fancy. A quick and easy example of what this would be can found in, of all places, the film Mad Max: Beyond Thunderdome. Aunty Entity's idea of justice makes it little more than a game: gladiatorial style combat in the Thunderdome itself, with the macabre chant of 'Two men enter, one man leaves' or Wheel of Fortune like: a wheel, segmented by various punishments and including, for fairness sake one might suppose, a thin sliver of an option for acquittal. We will have shallow law according to the rules an expectations of a game show.

Do we want justice to be a game? I should hope not. Yet when we say that judges should rule on how they feel rather than on what the law says, we will get exactly that. It will be on the quicksand of legal apathy that we shall choke.