Not long after we learned our ABC's in grade school we learned to recite the Pledge of Allegiance to the flag. For the past two decades the words "under God" have been considered controversial because of our cultural wrangling over whether or not it is appropriate to mention God in public. What seemed like a natural expression of who we are as a society in 1954 has led to multiple modern day legal challenges seeking to remove the phrase on the grounds that some find any mention of God offensive.
But now it seems President Obama is seeking surreptitiously to change the pledge once again. By citing empathy as a key characteristic of a qualified Supreme Court Justice, the President, whether he realizes it or not, is seeking to replace the concept of blind justice with a form of justice that is built on feeling rather than objective truth. A simple, working definition of empathy would be the ability to identify with, or otherwise vicariously experience the emotions, thoughts, and feelings of another person.
Any potential Supreme Court nominee who brings empathy to the judicial equation removes the blindfold from lady justice and provides her with rose colored glasses which will allow justice to bent in favor of the background or circumstance of the people involved rather than the rule of law. That action would be a direct violation of the part of the Supreme Court Justice Oath of Office that says, "I will administer justice without respect to persons, and do equal right to the poor and to the rich." It is impossible enter into the feelings a person may have based on their race, gender, background, or life circumstances and then render a decision "without respect to persons."
Commenting on his reason for refusing to vote to give Justice John Roberts a seat on the Supreme Court, even though he acknowledged, "There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land" then Senator Obama said, "he has far more often used his formidable skills on behalf of the strong in opposition to the weak." To then Senator Obama, now Chief Justice Roberts's knowledge of the law and his ability to apply the law rightly protecting both the strong and the weak became a reason to disqualify him from office.
When Senator Obama asked Roberts about how he viewed balancing the rights of the weak and the strong, Roberts answered and he saw the law and the court as a means of leveling the playing field between the strong and the weak. Roberts was right in that it is the law and the right application of the law by the court that balances the field, not the empathy of the justices.
The examples Senator Obama used as to when a justice would need to rule in favor of the weak over the strong included affirmative action and a woman's so-called "right to privacy." But in Roe vs. Wade, a majority of the justices found the rights of a weak, helpless, unborn child to be subservient to the rights of a strong, healthy female. And the main purpose of affirmative action is to make a person's race a position of strength in order to weaken the idea of equality based on the strength of individual qualifications.
During the press conference announcing Justice David Souter would be retiring this summer, President Obama spoke about the qualifications he would look for in a replacement. Empathy became the centerpiece of those qualifications when Obama said, "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes." In nominating Sonya Sotomayor to fill Souter's seat, President Obama found his champion of empathy. Speaking at the annual Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California, Berkeley in 2001, Sotomayor said, "I would hope that 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." She was questioning the famous notion often invoked by Justice Ruth Bader Ginsburg and Sandra Day O'Conner that a wise old man and a wise old woman would reach the same conclusion when deciding cases.
Given the comment in its context, Sotomayor obviously believes empathy is a key ingredient in making wise judicial decisions. While her comments about a wise Latina woman have received the most press they are by no means the only example of her intention to take gender and race into consideration in her case renderings. At the same conference in 2001, Sotomayor said, "Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging"(emphasis mine).
When confronted with Sotomayor's remarks, President Obama said he is "sure she would have restated it." But just last week, five boxes of files were delivered to Capitol Hill filled with the speeches and writings of Sotomayor. A quick look at those speeches reveal an almost verbatim repeating of her remarks in speeches given in 2002 and 2003. A fact that would suggest she often reiterated her position and rather than restating it.
Her appointment to the Supreme Court would certainly correspond with President Obama's theme of change. Her judicial philosophy would exchange empathy for blind justice, and change the motto of the Supreme Court from "Equal justice under the law" to "Empathy for all under the law." Eventually, we would need to change the Pledge of Allegiance to "liberty and empathy for all."