In July 2007, presidential candidate Barack Obama set forth his criterion for selecting Supreme Court justices:
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.
Unfortunately, this is one campaign promise Obama kept when he selected U.S. Court of Appeals Judge Sonia Sotomayor to fill the vacancy soon to be left by retiring Justice David Souter. Her objectivity immediately became a key question for the Senate Judiciary Committee investigating her for confirmation. Sen. Jeff Sessions noted that the central question should be whether she allows her personal views to taint her judicial decisions.
A common symbol of justice that adorns many courtrooms and law offices in America is that of a robed woman holding the scales of justice and wearing a blindfold. Justice is supposed to “blind” – but what exactly does that mean?
We certainly want the eyes and ears of the judge and jury to be open to all relevant and competent evidence without which it would be impossible to discover the truth. But historically the judge was impartial and, in a sense, “blind” as to the person coming before him: rich and poor, young and old, men and women of all races were entitled to equal justice under the law.
As long ago as 1256, an English jurist by the name of Henry de Bracton wrote in his treatise “On the Laws and Customs of England” that every judge must employ truth in judgment. This “judgment” consisted first of:
indifferent and impartial acceptance of the parties, as it is written in the first book of Deuteronomy, “Hear them and judge righteously between them, whether he be one of your country or a stranger. Ye shall not respect persons in judgment, but shall hear the small as well as the great; neither shall ye respect any man’s person, for the judgment is God’s.”
This biblical injunction, given by Moses to Israel, was quoted by Judge Bracton and has been a cornerstone of English law and, more recently, American jurisprudence. Bracton specifically directed his advice to “lesser judges” because he noted that “greater judges” frequently subvert the law by deciding “cases according to their own will rather than by the authority of the laws.”
A judge must not rule by his own will but from the law. He must disregard sympathies, prejudices, personal opinions, or preconceived notions and impartially apply the law to the facts of the case. His own background, race, gender and feelings should play no role whatsoever in the administration of justice. What Judge Bracton wanted to preserve “to posterity forever” has been forgotten or simply discarded today, as evidenced by Sotomayor’s nomination.
It is no surprise that this president would choose a liberal activist judge to fill the vacancy on the court. Sotomayor’s past rulings have supported liberal policies like affirmative action (for certain races) and restricted the right to keep and bear arms, and at least two U.S. senators have assured us that Sotomayor supports Roe v. Wade, the infamous 1973 decision that has led to the merciless slaughter of approximately 50 million unborn babies. Thus it was hardly surprising to learn that in 2005, during a panel discussion at Duke Law School, Sotomayor stated that the court of appeals “is where policy is made.”
However, what should really concern us is her “empathy” for those who come before her court – or rather, for certain people and not others. Empathy is defined as the understanding or sensitivity to the “feelings, thoughts and experience of another.” In a 2001 speech at the University of California Law School at Berkeley, Sotomayor stated:
I would hope a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Such a comment is hardly taken out of context, since Sotomayor was directly contradicting a judicial proverb that “A wise old man and a wise old woman will reach the same conclusion in deciding cases.” She apparently believes that her “Latina” background better qualifies her as a judge than a “white male” who has not lived “that life.”
Does each interest group really have its own “truth” or its own “law”? Is there one truth for a Caucasian and another for a person of Latina descent? One truth for men and another for women? According to the scriptures, “One law and one manner shall be for you, and for the stranger that sojourneth with you” (Numbers 15:16).
In the postmodern view that prevails today, there seems to be no objective truth or established law. Truth seems to be in the eyes of the beholder. Likewise, the words of the law and the United States Constitution mean only what new “empathetic” judges say they mean.
Obama is clearly seeking to make the judiciary in his own image. Sonia Sotomayor’s subjective, postmodern worldview may be exactly what Obama was looking for, but it is not what America needs in a judge, especially on the U.S. Supreme Court. Judging from her “empathy” she may undermine the very concept of equal justice under the law. As in the days of Judge Bracton and even of Moses, the issue remains: Should judges rule according to the law or by their own will and feelings?