- The Washington Times - Thursday, May 7, 2009


Judicial Confirmation Network counsel Wendy E. Long’s Op-Ed relies on the bizarre, unjustifiable premise that judges must be devoid of empathy in order to avoid lawlessness (“Opening of a sorry chapter,” Opinion, Monday).

Constitutional provisions, amendments and statutes do not just magically appear. They are written for a reason: to alleviate real problems that afflict many different people in a wide variety of circumstances.

Respect for the law requires judicial empathy - the ability to see the world from other people’s points of view. Empathy is needed to avoid bias, which can result from overreliance on a justice’s own limited - and typically highly privileged and insulated - experience and perspective.

Most Supreme Court justices lacked the empathy to understand the secretive nature of pay discrimination or how and why the Americans with Disabilities Act (ADA) of 1990 was written. The resulting opinions misinterpreted and unjustifiably gutted statutory safeguards. These mistakes were highlighted when a unanimous Congress and President George W. Bush strengthened ADA and when President Obama signed the Lilly Ledbetter Fair Pay Act.

In 1896, in Plessy v. Ferguson, the Supreme Court created a theoretical “separate but equal” doctrine that endorsed Jim Crow segregation. The resulting real-world impacts on schoolchildren, however, were “inherently unequal” and thus unconstitutional, as the Court unanimously held in Brown v. Board of Education in 1954.

There is a reason why judges are people, not computers.


Senior Judicial Counsel



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