Sunday, May 10, 2009

Earthjustice senior judicial counsel Glenn Sugameli, in his letter to the editor (“Don’t rule out empathy,” agrees with President Obama that “respect for the law requires judicial empathy the ability to see the world from other people’s points of view.” This raises the question: empathy toward whose point of view?

Mr. Sugameli points to Plessy v. Ferguson as a failed Supreme Court decision that “created a theoretical ‘separate but equal’ doctrine that endorsed Jim Crow segregation.” The problem with Plessy, however, was not lack of empathy, but too much of it - empathy toward the feelings of segregationists. The fourt’s empathy was so powerful that it overruled the clear language and intent of the 14th Amendment, which was enacted after the Civil War to require states to provide equal protection to all citizens, including former slaves.

There is a reason why judges must rein in their personal empathy: so that they rule under the law rather than above it.

If we require “judicial empathy,” we should require it not only in word, but also in deed. Judiciary committee hearings should zero in on whether a nominee has demonstrated that he or she has genuine empathy. I suspect we will find that the push for empathy is not really for those who are empathetic enough “to alleviate real problems that afflict many different people in a wide variety of circumstances,” but for those who are empathetic to a liberal political philosophy that mouths empathy while living an insulated and privileged life.


Falls Church

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