"Fairsies"

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. 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."

I usually try to stay rather apolitical in my blogging, but the above quote from Barack Obama has really been bothering me. As I explain why this bothers me I will try to keep it from becoming a rant, but give no guarantees.

As a first year law student, one of the first lessons that was embedded into my way of thinking was that of "fairsies." "Fairsies" is basically the concept that when applying the rule of law, a judge or jury can't rule based on what the fair outcome would be. Tugging of the heart strings should have no influence on the decision. All decisions must be made according to the law as it is written and interpreted and as according to the precedent set forth by prior cases. If the judiciary judges every case according to the fair outcome then the laws would be inefficient and there would be no way to set a legal standard because what's fair in one case may be completely inequitable in another. If a Fairsies or Equal Justice standard were set, case law would be nothing but a hodgepodge of cases that nobody would be able to interpret. Because of that courts have reject the Equal Justice argument. Justice John Marshall Harlan said it best in rejecting the perversion of "Equal Justice" in his powerful dissent in Plessy v. Ferguson:

"Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law regards man as man, and takes
no account of his surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are involved. "

"All citizens are equal before the law." What a beautiful concept. No one citizen is judged to be more important or in a higher standing because of any issue, race, age, or case. All are equal. Even the "judge's oath," codified at 28 U.S.C. § 453 states that all are equal and the judge cannot be partial to any one party.

"I, _________, do solemnly swear (or affirm) that I will administer justice
without respect to persons, and do equal right to the poor and to the rich, and
that I will faithfully and impartially discharge and perform all the duties
incumbent upon me as _________ under the Constitution and laws of the United
States. So help me God."

So, in light of all this, what part does empathy play in a judges decision making? I'm hard pressed to find where this is a necessary quality. Sure, I don't a cold, unfeeling, person sitting on the bench. A judge must have a heart, but it can't be a factor in legal decisions.

(Beware this next part will be more of a rant)

When Obama gave this little tidbit of a quote, I have to wonder if he even looked at who is on the court. Sure there's nobody that was a single teenage mom, but look at the rest of his list. Poor, African-American, gay, disabled, old. None of the current members of the U.S. Supreme Court (USSC) are openly gay, but his other necessary qualities are well covered.

Justice Clarence Thomas is African American and grew up very poor. He was raised by a grandfather (after his father abandoned the family) who worked very hard to keep the family just above the poverty line. He even mentions that he was so poor that his student loans were not paid off by the time he became a Justice on the USSC. As for the disabled and old qualities, I think most every justice we've ever had hits the old quality. And I don't think John Paul Stevens is going to do a jig anytime soon, let alone get up the stairs by himself.

All this is to demonstrate (partially) that people (the President) need to look at the court. It's made up of an eclectic group of well educated and politically diverse people. They come from all different socioeconomic backgrounds, but those backgrounds should not determine the decisions that they hand down. The Constitution is the only determining factor. Now, the Justices may disagree on how to interpret the Constitution, but at least they are to interpret the Constitution based on what the document says, not by the way their heart beats or bleeds.

PS-Thanks to Townhall.com for the political cartoon.