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National Legal Summit
Created Equal: Reflections on the Unalienable Right to Life

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The Sotomayor Nomination: Rule of Law, Not Empathy, is the Standard

By Thomas A. Glessner, J.D.
June 3, 2009

When running for the presidency Obama made it very clear what standards he would rely upon, as President, in making appointments to the United States Supreme Court. He made it clear that "empathy" is the character he seeks in a judicial nominee.

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.

Obama criticized Chief Justice John Roberts for saying that he saw his role as a Supreme Court Justice like an umpire who calls balls and strikes.

But the issues the come before the court are not sports. They're life and death. We need somebody who's got the empathy to recognize what it's like to be a young teenage mom.

Obama further said that while 95 percent of the cases that come before the Supreme Court can be judged on intellect the other five percent should be scrutinized differently:

In those five percent of cases, you've got to look at what is in the justice's heart, what's their broader vision of what America should be.

It would appear that President Obama's first judicial appointment to the Supreme Court, federal judge Sonya Sotomayor, meets the criteria set forth by the president. Judge Sotomayor grew up on the poor side of town in the Bronx. As such she worked hard and struggled to succeed in life. Through her hard work and motivation she has advanced in the legal world to where she now is ready to take her place as a justice on the highest court in the land. Clearly she comes from a social position that gives her a lot of empathy for those considered less fortunate in our society.

As a judge Sotomayor readily agrees with Obama's assessment of the need for empathy in judging and she believes that someone with her background has far superior wisdom in making just rulings. Her comments that a "wise Hispanic women", such as her, would undoubtedly make wiser judicial decisions than a white male indicate that she believes that not only empathy but also one's race and background are qualities that should affect the outcome of cases.

So, whatever happened to the Constitution?

Having empathy with others is, of course, an admirable quality. And it perhaps is one quality we would look for in electing a president, a Congressman or others to political office. But as a quality that impacts the decisions one makes as a Supreme Court justice having empathy towards others should be totally irrelevant to deciding a case before a court.

The role of the judiciary in our constitutional system is to decide cases solely upon what is dictated by the Constitution. If a justice decides cases not upon his or her interpretation of the law but rather, upon their ability to empathize then clearly there are no objective constitutional standards upon which to rely.

Judging by one's heart and one's ability to empathize with others means that the judging won't be neutral and justice will not be blind. Rather, some parties who have the empathy of the majority of justices will always win while others no matter how compelling their case is under the law will always lose. Judging by the heart, as opposed to the dictates of the Constitution, means that the one doing the judging will only make a decision based upon the pull of his or her emotions. A Supreme Court decision decided in such a manner is correct as long as the "hearts" of the justices are in the right place.

Whatever happened to the Constitution?

Contrary to the common understanding of the nature of our government America is not a democracy. Rather, it is a republic ruled by officials who are elected by the populace to carry out the will of the body politic. As a constitutional republic our nation has imbedded in our political DNA a system of checks and balances that prevent one branch of government from becoming too powerful. Without such checks a particular branch can overpower the others and create tyranny upon the nation.

The public has the ability to check its elected representatives when they rule contrary to the will of their constituents by voting such people out of office. No such check, however, exists as far as the public being able to control the influence of a federal judiciary that is made up of unelected judges appointed for life. Because of this, the federal judiciary, and particularly the Supreme Court, is to exercise restraint and not make public policy. The making of public policy is the sole responsibility of our elected officials.

The federal judiciary was set up in the Constitution as a co-equal branch of government, however, it's role is to make decisions solely upon its understanding of the meaning of the Constitution. It is not to imbed its own social biases into its rulings. If the public determines that the Constitution needs changing to meet unique challenges of our times then the Constitution has an amendment process for the people to undertake through their elected representatives. The judiciary is not to impose its public policy preferences upon the people. It is to rule according the clear meaning of the Constitution. That is the rule of law.

It is a commitment to this rule of law that must be paramount in the mind of every justice who serves in the federal judiciary, and this is particularly so with the Supreme Court. Once the high court renders a decision it becomes very difficult to change such a ruling. If justices ignore the Constitution in making decisions and, instead, rule upon the dictates of their hearts and where their empathies are to be found our Constitution is rendered meaningless.

The upcoming confirmation hearings of judge Sotomayor must clearly determine how she views her role as a Supreme Court justice. If she agrees with Obama that her ability to empathize is a critical component to how a decision should be rendered then her confirmation should be declined.

It is a commitment to the rule of law, not the ability show empathy, which is the standard to use in determining whether one should sit as a justice on the highest court in the land. Preliminary information on judge Sotomayor indicates that she falls short of this standard.

Copyright © 2009 by Thomas A. Glessner. All rights reserved.

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