Wednesday, April 14, 2010

Empathy? Bah! Humbug!

It saddens me to have to disparage an otherwise perfectly good word, but what choice do I have? With the impending retirement of Supreme Court Justice John Paul Stevens, the Obama Administration and liberals everywhere are on the sharp lookout for a replacement justice who will judge with the same capacity for "empathy" that Stevens presumably displayed during his nearly 35 years on the Court.

To come directly to the point, not only is the possession of empathy an unnecessary qualification in a solid and reliable jurist, its presence, at least in the way liberals intend it, is an unqualified threat to our constitutional principle of equal justice under the law.

As we all know, or should know, before the law one is neither rich nor poor, male nor female, black nor white, Christian nor Jew, etc. Rather, our aspiration, consistent with our highest ideals, as well as our formally expressed constitutional intention, is that before the law one is simply equal. That at least there at the bar one's station in life should be neither an advantage, nor a disadvantage.

But the liberal demand for the supplemental ability to empathize turns this principle on its head as it not only permits, but positively encourages unequal justice before the law. For them, rather than striving to be blind to it, one's station in life is precisely what a judge should consider before ruling in a particular case.

I suppose I could be convinced to worry less about this if I were sure the demand for this additional qualification were also a demand that it be applied to both parties in a legal contest. At least then it might approach something like equality before the law. But I'm afraid I can't be sure of that because that is not the way in which liberals mean for empathy to function. What they mean, is that armed with empathy a judge should feel compelled to give an extra measure of understanding and consideration to parties who happen also to be members of privileged groups. Today, those groups include, women, people of color, homosexuals, the poor,....well, you know, the groups of people believed to largely make up the governing coalition that is the contemporary Democrat Party.

As disgusting and dispiriting as that fact is on its face, if you're a conservative, it also presents further legal problems...even for liberals. First, how is a judge to decide between opposing litigants of similarly privileged groups, in a contest between a poor black man and a lesbian, for example. Here, his empathy just might tie him in legal knots. Secondly, we all know that the composition of these privileged groups will change with shifting electoral fortunes. As things stand, white males are definitely out, but in a few years...well, who knows? At that future date, how is a judge to decide? Where will, or should, his empathy then lie?

If this principle of empathy weren't so ridiculous, making it all too easy to lampoon, we might more readily recognize it for the affront to justice that it actually is. And if I didn't possess an unwavering faith in all liberals' capacity for hypocrisy, I just might be tempted to despair over the fate of our country. I mean, as I've described them, equal justice under the law and empathy, as legal principles, are perfectly incompatible. Those who aspire to one over the other actually inhabit different moral universes. Universes so different, in fact, that living harmoniously together is extremely problematic, if not altogether impossible.

But fear not, for as I suggested, a Limousine Liberal is actually the only kind of liberal there is, at least among the elites. What do I mean? Well, liberals' tax attorneys and accountants have standing orders to avoid the very progressive and confiscatory taxes they otherwise champion. Liberals routinely send their children to select private schools while at the same time, in the name of support for public education, push for laws that would deny that choice to their less well-heeled fellow citizens. Liberals regularly build fantastically huge mansions that alone use more electrical power than your average working class neighborhood does. Need I continue? When it comes to themselves, if they happen to be upper-middle class white males, that is, I'm fairly certain they'll want a judge who believes in equal justice and not one who embraces empathy. (Do you think maybe any of the Duke lacrosse players' fathers might have been good liberal Democrats before the NC prosecutor exercised some empathy when deciding to press charges against their sons?)

Will their hypocrisy be their, and our, salvation? I'm not sure. But maybe if I were a bit more empathetic.


  1. Great post . . . well reasoned, with just the right dose of passion. Another home run for the Sage.

  2. Just to add: President Obama said in his statement about Stevens' retirement that he would seek a replacement who had "a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." Populist claptrap. Unfortunately, both sides resort to this, and it has forever politicized the judiciary.