The Problem with Empathy

Like the rest of America, the Constitution must be flawed in BO’s view — because it, too, needs to be remade. We don’t need justices who merely interpret the law after all — we need justices who are empathetic and responsive to the American people. Appointing a politician who can help the Court reach ‘consensus’ is also important to this president. At the outset, I want to acknowledge that empathy and consensus-building are important personal traits. However, neither of these should be stated as requirements of Supreme Court Justices — because neither trait is needed or relevant for jurists in a Constitutional democracy. Let me explain...

To be an empathetic justice means that one would feel his or her way to the correct decision. This approach is abhorrent to our history, the notion of limited government, and of Constitutional democracy. Feelings are not necessarily bad — don’t get me wrong — it’s just that you cannot have a society whose supreme law is built upon the feelings of nine unelected and unaccountable justices. To say that these justices should apply their personal feelings, their empathy, individual sympathies and ‘caring’, means that the desires of the people, expressed in legislation voted on by their elected representatives should take a back seat. For too long we’ve allowed the Court free reign. The other branches have no constraints on them so why should the Court? We have become unmoored from our founding principles. And BO is pushing us further out to sea. It’s much easier, after all, to push his agenda through an empathetic Court than through the legisltive process — and easier to grab more power when you have a Court that doesn’t insist on adhering to the Constitution.

The law, and specifically the Constitution, is meant to change very slowly. Dramatic shifts undermine the order and stability necessary for citizens to plan their lives and affairs. Change is intended to come, not through judicial fiat, but through the legislative branch — and then only in areas the Constitution allows the government to act. We have entered into a dangerous era where government is unlimited. Where power flows not from the people to the government, but from the government to the people. No longer is it true that ‘We, the people” set the parameters for government — more and more it is government telling We, the people, how to live. Dear Leader likes it this way. And so, too, do the fawning media and the 53% of citizen-children who like paternalistic and ‘caring’ government to take over more and more of their lives.

Souter was a horrible Supreme Court Justice. He had no judicial philosophy – no respect for stare decisis, federalism or our Constitutional form of government. I’m glad to see him go — George HW Bush’s greatest mistake. But I fear that in his place a much more dangerous man or woman to our liberties will be seated on the Court and told by the President to ‘do justly’ which is now interpreted not as fidelity to our law, stare decisis, our traditions and blind justice, but to pick winners and losers based on so-called caring, compassion and empathy. If Obama has his way, he will appoint someone who will undermine our Constitution and liberties for years to come.