- The Washington Times - Friday, May 8, 2009

ANALYSIS/OPINION:

Apparently President Obama models himself after “Star Trek” Capt. Jean Luc Piccard. They both want to travel through the universe with a personal empath to guide them.

The new “Star Trek” film is out today, the latest installment in a series begun more than 40 years ago. But President Obama’s pick for the U.S. Supreme Court may prove just as durable as “Star Trek” and take the law to places just as alien as planet Triskelion.

Mr. Obama recently gave America a hint as to what he is looking for in a Supreme Court nominee. “I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives - whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

Mr. Obama’s view has many logical problems. What if the judge empathizes with the guilty over the innocent? What if the judge sides with people of his race over other races, no matter what the facts and evidence? Down this road of empathy lies a staircase of increasing evils: selective justice, favor seeking, outright prejudice and the meltdown of judicial impartiality and the respect for law.

If Mr. Obama succeeds, “We would have entered a strange new world, where everybody is equal but some are more equal than others,” writes Thomas Sowell. “The very idea of the rule of law becomes meaningless when it is replaced by the empathies of judges.”

Mr. Obama solves this contradiction, as he solves so many other problems, with lofty language. If you believe in the rule of law, he will utter the words “rule of law.” But with each step he takes, he carries us farther away from the ideal of impartial judges hearing our cases without fear or favor.

To get an idea of where this empathy craze will lead, let us take a look at the place where this contagion has already metastasized, in America’s public schools. Children are told they cannot have birthday parties unless every member of the class is invited and soccer games are kept scoreless in the hopes no one feels like a loser. In the real world, no kid is fooled and the adults only fool themselves.

Still the idea of empathy has caught on as another way for the center-left establishment to promote its worldview and message. It is politics cross-dressing as politeness.

Yes, judges need some empathy when crafting a just sentence after a fair trial, but empathy is not justice itself. Justice is giving each person his due, which means applying reason to the law and the known facts. Indeed, empathy can easily undermine the whole justice system. The heart can too easily lead the head astray. While the next Supreme Court Justice will need both, only one can rule.

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