Right Thinking

Before I discuss the real issue of this blog post, let me scream. Roe v. Wade DID NOT establish the right to privacy. If you are on the Senate Judiciary Committee, you should know that; the fact it was written in a prepared statement only makes it worse.

But, the great debate of the Senate today is whether or not empathy belongs on the Supreme Court. It is a widely debated topic and has scarcely been agreed upon in the history of our nation. If this is the case, however, then how are we to know what is right? If our founding fathers disagreed, how can anyone act in a legitimate way?

The answer is clear. We live in a country ruled by the majority. Whatever the individual framers had in their hearts is irrelevant. What they agreed upon and codified as our Constitution is not. When the last state ratified our Constitution, we all agreed to be bound by it. Like it or not, it is our law.

Because of this, the role of the Supreme Court Justice can only be determined by the literal text of our Constitution (take a peek at my previous blog post: Supreme Power for more on that). The Constitution does not contain a call for empathy or compassion. Empathy is the ability to see things through someone else’s eyes, irrelevant since Justice is blind.

Aristotle was quoted during the confirmation hearings today as saying that ”Law is reason, free from passion.”  While most Americans know that from Legally Blonde and not Alexander the Great’s tutor, it bears repeating. If empathy is included in the decision making process, the Justice must consider the passion that caused someone to spend years of their life and millions of dollars to bring their case to the High Court. Inevitably, this passion will taint decisions.

Despite claims to the contrary, the greatest court decisions in our history are essentially calling balls and strikes. The fact that Roberts hasn’t lived up to the man he portrayed in his hearings is irrelevant, but oft quoted by Democrats as a kind of indirect ad hominem argument [Well, you didn’t say this when Bush was POTUS and Bush was awful. Obviously that invalidates your argument.] Applying the Bill of Rights to the states, outlawing “separate but equal” as a violation of the equal protection clause and every important case I can think of all find their basis in the actual text of the law.

What happens when passion taints decisions? We get mountainous judicial arrogance like Dred Scott, where the 3/5ths compromise was determined to classify slaves solely as property. We get Plessy, where the Equal Protection clause is neatly ignorned because the Justices wouldn’t want their children in school with Negroes.

It was argued during the hearings today (by a man with awful hair which may have distracted me from his argument) that if the role of a Justice was simple “calling balls and strikes, we wouldn’t need nine.” Ignoring the fact that the number of Justices has varied over time and was set by Congress, not the Constitution, the point of having nine is to weigh out individual temperments. Occassionally, even reasonable Justices will make decisions based on the passion of the moment, not the law (Bush v. Gore?). In most cases, however, this is overwhelmed by the other Justices. That is why we have nine.

Empathy on the bench is a corrupting force at best and should never be allowed on the most important court in the land.

A concession: Too much was made of Obama’s comments today. Maybe it is just because Sotomayor has given us so little, but the President is not the one in a hearing. Goodness, let’s keep the conversation germane, Senators!