Empathy On the Supreme Court

President Barack Obama has listed empathy as a major characteristic he's looking for in the selection of a new supreme court justice. The pending vacancy is a result of the looming retirement of Justice David Souter. Well, it's clear that Republican politicians don't believe in empathy. Of course, there is no question that what is needed is a strict constructionist. Besides, justice is blind and we are a country of laws so one's personal feelings play no role in court decisions.

Still, I wonder why many of these same politicians are often very much in favor of advocating for victim's rights. Why is it that a family member of a murder victim, for example, must be given a right to speak to the jury? Their feelings have absolutely nothing to do with the guilt or innocence of a criminal defendant, but they must be given the opportunity to sway the jury. The actual evidence against the defendant may be somewhat weak, but the gravity of the crime itself argues for conviction. We are asked to engender empathy for the victim and his/her family. Could this be why a number of cases of wrongful convictions are now being discovered through DNA evidence? Is there perhaps a rush to judgement in some of these cases?

I am not a constitutional lawyer, although, I believe it has been mentioned that the president is not only a constitutional lawyer, but has actually taught the subject. How can he be so misguided as to believe that empathy might be important? My own sense is that the reality is, it is impossible to divorce one's feelings and beliefs from how one administers justice. Those who believe marriage can only be between a man and a woman would have difficulty seeing any justice in granting rights for same sex marriage. Perhaps what Republicans are really afraid of is that an empathetic justice might actually have feelings about poor people and those discriminated against or oppressed. Would Republicans be as concerned about a justice who was empathetic to large corporations, to those who didn't want to pay taxes, or to groups who opposed gay rights or abortion rights? Perhaps empathy is in the eye of the beholder. Yet, it does make a good Republican talking point to rail against empathy.

The difficulty I have is that I tend to see a relationship between legalistic approaches on the court and legalistic or fundamentalist interpretations of the Bible. It seems to me that in the legal or the religious framework the purist tends to believe that the issues are more clear cut than they actually are. The strict constructionist or the believer in a literal interpretation of the scriptures often eliminate common sense understandings from their deliberations. Yet in spite of their rigidity they sometimes operate with selective memory. A fundamentalist will point to a passage that says homosexuality is wrong and end the discussion, yet the fact that Jesus clearly tells us to turn the other cheek may be seen as an ideal but not to be considered literally. In the same way a strict constructionist might say that all powers are reserved to the states if not enumerated in the constitution, but yet have no problem interfering in a personal decision such as in the Terri Schiavo case. Justice Scalia may see no right to privacy in the constitution, yet every American believes he/she has a right to be free from unreasonable searches and seizures. That seems to touch on the issue of privacy.

Clearly there are many difficult challenges facing legal scholars today, and no one would suggest that someone learned in the law is not critical for today's court. I must confess, however, that someone who is inflexible, who has had little or no experience dealing with people on a day to day basis, and who lacks empathy for the challenges ordinary Americans face seems pretty scary to me. As a Catholic, I know my church says that abortion is wrong even when the life of the Mother is in danger. If my wife's life is in danger however, I don't want a canon lawyer giving me abstract arguments about what I must do, I want a pastor, i.e. someone with empathy.