Kagan, Obama and the thumb of empathy

Ed Morrow Contributor
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In the British comedy show “Monty Python’s Flying Circus,” a cartoon God would often send a giant foot down from Heaven to squash malefactors. Some see God’s justice in the non-cartoon world to be similarly imposed, with Him smiting the unjust, albeit minus the giant foot. The Old Testament gives examples that fit this model, but things get complicated upon closer inspection. Was God a little indiscriminate in His actions? While the Israelites were the Chosen People, there must have been a few virtuous souls among the various Runners-Up Peoples that the Israelites, with God’s help, destroyed. The New Testament offers more material for theological puzzlement, for we are urged to love those who do us ill which, one could argue, rewards evil. Our experience of the world adds to the confusion about God’s justice for, while bad things happen to bad people, bad things also happen to good people and, very irritatingly, good things happen far too often to bad people. How simpler it would be, if He actually did send His foot down upon evildoers. Presumably, God has the capacity to dispatch as many giant feet as required and soon the Earth would be thrumming with a divine version of River Dance as He trampled out some of His wrath upon evil human grapes. It would certainly send a strong message to the criminal classes if, for instance, when the police located a killer, God had already dispatched His foot to flatten him. To invoke another television program, imagine an episode of “CSI” in which forensic expert Grissom leans over a paper-thin corpse, scratches his chin, and declares, “He must be the murderer. He’s been God-stomped.”

While we may wonder whether and how God imposes His justice in the here and now, many believe He will certainly and unmysteriously impose it après vie. He permits us the exercise of free will, which, in turn, makes us responsible for our actions, and whether those actions are worthy will be determined when we face ultimate adjudication on Judgment Day. God’s courtroom will be overflowing with angelic advocates and demonic prosecutors contending over humanity’s souls while, undoubtedly, great hordes of idle busybody souls look on curiously, munching the Heavenly equivalent of popcorn, as they await their turn before the bar where God sits as judge. Being omnipotent, no trimming of the truth will escape Him. He will understand our motives and know the exact measure of the harm we’ve done and will be able to apportion precise justice. There will be no reasonable doubt, no contested evidence, no unreliable witnesses, no ambitious prosecutors, no loophole-finding defenders and no biased jurors. We, His creations, will receive the bluntest of legal treatment—a completely fair trial—with the small solace that none of us will be called upon for jury duty for any of the other souls on God’s docket.

Human justice is far cruder than God’s, involving all the pitfalls mentioned above and more. Consequently, we have developed rules that balance the rights of defendants and plaintiffs while protecting society. Three objects associated with the figure of Lady Justice symbolically describe the attributes essential to her task. These are the scales, the sword, and the blindfold. The scales aren’t there because she’s a Libra. It’s because the law must fairly evaluate the arguments of those seeking justice, balancing one against the other. The sword in Lady Justice’s hand refers to the authority of the law to command compliance with its decisions and to punish. Finally, the blindfold isn’t on Lady Justice’s face because she doesn’t like looking at lawyers. It’s there to show that she is blind to those who appear before her. Justice must be impartial.

Impartiality isn’t just a quaint nicety, like tipping your hat to a lady or giving an elder your seat on the bus—it’s a practical necessity. How could contracts be drawn and commerce conducted, if agreements were subjectively evaluated with the party most appealing to a judge’s prejudices prevailing in any disagreement? Beyond nicety and necessity there is also an unbreakable linkage between impartial justice and the equality of man. If we believe all men are created equal, then all have an equal right to justice with no man receiving any special privileges over another for any reason, no matter how appealing that reason may be. If we forget this, we endanger liberty, and that is what is happening now as President Barak Obama advances his Solicitor General, Elena Kagan, to the U.S. Supreme Court. Our president values “empathy” over impartiality.

While running for the presidency, Obama made his desires clear when he declared, “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’ll be selecting my judges.” Earlier, in 2005, while explaining why he voted against the confirmation of Supreme Court Chief Justice John G. Roberts, Jr., he cited his belief that Roberts lacked empathy and insisted that the final factor in a judge’s decision making shouldn’t be the law but “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

After receiving much criticism of his preference for empathetic judges, President Obama has shunned the word “empathy” in his public pronouncements about his requirements for judicial nominees, preferring to use less specific invocations such as a “keen understanding of how the law affects the daily lives of the American people” or an appreciation of how “ordinary people” are affected by the law. This is a transparent semantic trick, as a “keen understanding, etc., etc.” is just “empathy” expressed in different words—certain favored people are to get a friendlier look from an Obama-approved judge than other unfavored people. No matter how Obama re-brands his empathy, it sacrifices impartial justice for what he believes is social improvement.

Obama and those on the Left who agree with him believe impartiality should be adulterated with empathy to produce results in court that redress past social injustices and current inequalities. Not coincidentally, this gives these employers of empathy the power to decide who gets justice, or at least, who gets what will go for justice. But don’t worry, they say, any power we grab will only be used for the betterment of humankind and not to reward our supporters and further empower us. You can trust us. And amiable leprechauns with ready cash can always be found at the end of every rainbow.

History is bloated with examples of governments gone wild after tossing aside their founding principles. While they don’t flash fraternity boys, they do get drunk on taxes and nationalized industries, make fools of themselves, shucking off ideals and rights that should remain buttoned up and zipped tight. They figuratively go to bed with dictators, who seem so glamorous, masterful, and generous with duller people’s money, without worrying about what STDs or offspring may result. A legal system committed to impartiality and rooted in a constitution is a bit like a cautious parent who says no, my dear daughter, you can’t take my credit card with you to Ft. Lauderdale, no you can’t share your hotel room with the football team, and, yes, if I see you in some late night commercial for saucy DVDs, you will spend next Spring Break with your grandma, bathing her cat.

Obama cites teenaged moms, the poor, African Americans, gays, the disabled, and the old as groups to whom he wants judicial empathy extended. Unfortunately, he doesn’t indicate how these groups will be given priority. What happens if an old person faces a teenaged mom in court? Who gets the empathy? What if the old person is disabled? Does he get double empathy? If a gay person has a dispute with another gay person, does the opposing empathy cancel out? Can a claim for empathy be inherited? If a teen mom herself had a teen mother, does she get extra empathy? Presumably, the empathy given to a poor dairy farmer with a single cow so ancient it needs bifocals to find a bale of hay trumps the empathy given a wealthy socialite who spends her life living it up at cocktail parties, but how about a farmer with a barn full of contented cows producing thousands of dollars in price-supported milk and a not-so-wealthy socialite who stays home a lot? To invoke yet another television show, Obama’s empathy will turn American courts into official versions of “Queen for a Day,” the old game show wherein contestants told sob stories with the most heart-rending tale, as identified by an audience applause meter, winning washing machines, trips to Hawaii, or life-time supplies of Turtle Wax, while the less heart-rending tale tellers went home with yet another misfortune to bear.

Are the officially designated empathy recipients a permanent group, or do their claims attenuate over time? Is there a limit on how much empathy can be bestowed? Will someone keep an official count of who gets empathy and how much they got? What if an approved class has gotten a heaping portion of empathy? Are they removed from the list of empathy getters? Or will beneficiaries of Obama-bestowed empathy enjoy, as with the Turtle Wax winners, an endless bounty.

Comparative wealth is a factor in Obama’s empathy distribution. Will your tax return be reviewed before you give testimony? If you have one dollar more in your pocket than your opponent, are you the designated fat cat villain and, if not, what amount of money does confer that status? If, through empathy, you win a substantial sum from today’s courtroom adventure, will you be the fat cat next time around? How about non-monetary good and bad fortune? Do you have liver trouble, a bum leg, or suffer from the heartbreak of psoriasis? Are your kids brats? Ladies, does your husband have more hair in his ears than on his head? Gentlemen, is your wife uglier than your courtroom opponent’s wife? Does yours have a wart where his has a dimple?

Obama’s empathy calculations will assign value to your occupation and associations. Do you practice a frowned-upon profession such as hedge fund trader, nuclear plant worker, or conservative writer? Does your church profess tenets contrary to those blessed by the government? Are you a celebrity and, if so, is that A, B, C or D-list? Did you donate money to the right political party? For whom did you vote?

Blithely unconsidered in Obama’s empathy assignments is how those not getting government-certified empathy will react. Will they meekly accept lesser justice to right wrongs done to others, perhaps long dead, by someone else, perhaps also long dead? This doesn’t sound like something apt to promote warm fellow feeling in the citizenry. Obama ran as a candidate whose election would heal a nation divided by race, class, and wealth, but his prescription for America’s wounds is to cut deeper and slash fresh injuries.

The Left tut-tuts at these reservations and, with amazing arrogance, insists that we shouldn’t worry. They know who is deserving of special treatment and who isn’t and, if you doubt their god-like knowledge, then you must be one of the undeserving and should be ashamed of yourself if not prosecuted for hate crimes. Theirs is a new and improved justice, bright and shining with virtue, brought to you by the most compassionate and socially aware folks our politically correct institutions of higher indoctrination can spawn. It may have taken all of human history to produce the justice system they now want to toy with but, hey, they know what they’re doing. Shut up and watch while Obama juggles a roaring chainsaw, a hand grenade minus its pin, and a couple of babies.

Those judges Obama has put forward to serve on the federal bench have presumably met his empathy requirement. Consequently, they have had to answer questions about it from skeptical senators. This has produced some fancy tap dancing as prospective judges have had to defend this hitherto scorned judicial attribute or evade ownership of empathy despite the president’s evaluation that they possess it. Some, like the Associate Supreme Court Justice Sonia “Wise Latina” Sotomayor, wisely endorsed the law over empathy but others have equivocated. An inventive evasion came when Judge Albert Diaz, during his nomination hearing for his elevation to the U.S. Court of Appeals, claimed that empathy is a sort of sugar to make judicial medicine go down better. It helps the judge understand the justice seeker and that understanding can be used to convince the justice seeker “that they’ve gotten a fair shake, that the judge has listened carefully to what it is that they have to say.” Setting aside the uneasy feeling one gets when a judge blandly describes a tactic to create the appearance of justice, this definition of empathy boldly ignored Obama’s clear assertion that certain groups are entitled to special treatment.

Justice isn’t perfectly implemented in our courts. People have been sent to prison because they didn’t cry at the right moment or because a DA needed to hang a conviction on someone before Election Day. Others, like O. J. Simpson, have gone free when their unctuous lawyers swayed a jury of dummies. But this doesn’t mean impartiality should be abandoned. Neither does social injustice justify replacing impartiality with social engineering. Better justice and a fairer society depends on our striving to treat every one equally. It is a worthy goal that calls to the best in us and ennobles us in its pursuit. We turn away from this goal if we let Obama plunk down his Thumb of Empathy on the Scales of Justice.

It would be nice if the deserving victims in Life’s conflicts could be faultlessly identified. If only it were like an old Western with the Bad Guys wearing black cowboy hats and the Good Guys wearing white, then we could string up those black hat-wearing sons-of-whatevers from the nearest tree and buy a round of red eye for the white hats. But it isn’t that easy to determine who is dastardly and who is righteous. Sometimes, the cowboys wear grey. If we value justice, we must cast aside subjective presumptions of villainy and victimhood. We must begin with the law and judge dispassionately according to the law, for then the virtue of the contenders just might be revealed in their proven actions, the only demonstrable revelation available to the non-divine of what justice we should serve up.

Absent God’s foot to infallibly squish the guilty, it becomes our responsibility to provide justice, whether we have empathy or antipathy for particular justice seekers. If those who believe are correct, we do this at some peril, for someday, those who judge will be judged and, so will we, who gave them their robes, gavels, and Lady Justice’s sword.

Ed Morrow is an author and illustrator who lives in Vermont. Morrow’s books include “The Halloween Handbook,” “599 Things You Should Never Do,” and “The Grim Reaper’s Book of Days.”