Empathy is a great quality in an individual, but it has no place on the judicial bench. The rule of law means justice is blind. Everyone is treated equally under the law, regardless of status. Empathy removes that blindfold and looks to see who's case is more sympathetic. What's legal and what's illegal shouldn't turn on wealth, history of suffering, or power. How does a former law professor not understand this? Justice is only justice if it's blind justice.
2 comments:
Couple of thoughts on this one:
(a) I don't believe it is possible for justice to be blind if humans are its administrator. This stems from a variety of causes (in no particular order) - we can't control our perceptions; we barely understand how and when our perceptions affect our thoughts/judgements; we don't have the ability to fully understand situations/events/motives; etc.
(b) Even if we try to administer blind justice in good faith, I believe a sound argument can be made for attempting to include what you have termed empathy within its realm. Wealth, history of suffering, or power all affect the act that is being judged legal/illegal. The classic argument for blind justice is that the wealthy should not be able to escape justice due to their means - but when allowing for empathy, the wealthy could actually be held to higher standards because of the responsibilities entrusted to them.
(c) Finally, for justice to be blind, its administrator would have to have full faith in what can be described now as wholly imperfect laws. This is not to discount the rule of law, but to remind you that the subjects of an imperfect ruler (in this case the law) should not be held to perfect allegiance.
a) I agree with point A. I don't think we can ever eliminate our biases. Nor can we entirely eliminate many of our vices, but we should still strive against them, rather than make them the goal. See generally, Frodo v. Sauron. My problem with Obama is he makes empathy the goal. This might get us closer to the optimal if the bias is systematically skewed against empathy, but replacing favoritism for one group with favoritism for another hardly seems like progress.
b) Should some people be held to a higher standard? Probably. But that's for trial judges at sentencing, not at the Supreme Court. The Supreme Court's power is in the precedent it sets; precedent that touches beyond the litigants in the courtroom. So if the Court sticks it to the powerful today, the same ruling could stick it to the impoverished tomorrow. Seeking for blind justice would at least mitigate these types of results.
c) Our laws are imperfect, but the power to change those laws belongs with the people through their democratically elected officials, not through Supreme Court Justices appointed for life tenure.
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