Quote of the Day: Empathy vs. The Rule of Law

President Obama says that he wants to nominate a Supreme Court Justice who has “empathy” as opposed to a jurist who makes decisions based on “some abstract legal theory.” Not surprisingly, I’m not the only one troubled by his selection criteria. Thomas Sowell has written an excellent 3 part series “Empathy” Versus Law” (Part 1, Part 2, Part 3).

Of all of the many quotable passages to choose from, I think this one captures the main point of why we should be concerned:

That President Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.

Would you want to go into court to appear before a judge with “empathy” for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States.

Appoint enough Supreme Court justices with “empathy” for particular groups and you would have, for all practical purposes, repealed the 14th Amendment, which guarantees “equal protection of the laws” for all Americans.

  • Justin Bowen

    Though he didn’t do so in these particular articles, it’s interesting that Thomas Sowell would write approvingly of Oliver Wendell Holmes.

  • http://hathor-sekhmet.blogspot.com VRB

    I didn’t think Obama meant empathy for certain groups. I thought it meant that judges should leave their prejudices elsewhere. I thought it was more about equal protection. Where would the rule of law be not taken, since empathy is not the same as sympathy.

  • TerryP

    How much kool-aid have you drank VRB.

  • Akston

    Given a choice between the “rule of law” and the “rule of man”, I’ll take the “rule of law”.

    I don’t care whether Justice Souter et al. personally thought that the Fifth Amendment’s phrase “nor shall private property be taken for public use, without just compensation” really meant “nor shall private property be taken for public interest, without just compensation” and that these men could therefore take Susette Kelo’s property away from her and give it to developers.

    The rule of law helps guard us from men who interpret that law “empathically”. Especially when they end up empathic to the feelings of city planners who want to steal the fruit’s of our lives’ effort.

  • http://hathor-sekhmet.blogspot.com VRB


    Sometimes I think most people can not read or understand English that comment here.

  • southernjames

    Here, I’ll fix it.

    How much kool aid did you drink, VRB? There.

    “Empathy” means leaving your prejudices elsewhere?

    No – it means the exact opposite.

    Empathy is an emotion. Empathy means BRINGING your prejudices (which are emotion-based) into the the decision making process, rather than, in an UN-emotional and therefore fair and UNbiased manner, applying the law. In a fair, equal, and uniform (“blind”) manner for all.

    The lawyer-contributors at Powerline comment:

    “Deciding cases on the basis of “empathy” really means ruling in favor of politically-influential constituencies. We got a preview of the law of “empathy” in the Obama administration’s effort to violate the legal rights of Chrysler’s secured creditors in order to funnel money to the United Auto Workers. “Empathy” is another word for lawlessness.”

  • Merf

    VRB, please do not use poor grammar to criticize our understanding of the English language!


  • http://thelibertypapers.org/ Brad Warbiany


    I’ll agree with you — to a point — in that I’m not sure I’ve read quotes from Obama that explicity say that he’s trying to favor certain groups — but that I think his view of the Supreme Court is entirely consistent with “judicial activism”:

    I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

    Obama believes the role of the Supreme Court shouldn’t just be to impartially adjudicate cases based on what the law says; rather it’s to engage in social justice.

    I suppose you agree with that sentiment. But I wonder if you’d still agree if the court had 5 members of the Alito/Roberts mold?

    It’s easy to support arbitrary theories of judicial propriety when your guy is in power.

  • http://hathor-sekhmet.blogspot.com VRB

    I looked up the definition of empathy and symphony, to be sure I understood the difference.

    No one knows here exactly what my sentiments are, for I have not expressed all of them. I am not a purist of any ideology and when Clarence Thomas was selected my first thought was “is he smart enough,” since I had no clear view of his judicial thinking. The Republicans had no history of appointed qualified black people, just black people who agreed with their ideology. One that sticks out; a minister who ran a Christian radio station chosen to head the US Commission on Civil Rights, shouldn’t that have been a lawyer?

    I would have liked for the Supreme Court to have had empathy in order for them to understand the humanity of all humans for the first 150 years of the constitution.

  • http://hathor-sekhmet.blogspot.com VRB

    I am not one who thinks the world is going to hell in a hand basket, when someone is elected that I didn’t vote for.

  • Akston

    I am not one who thinks the world is going to hell in a hand basket, when someone is elected that I didn’t vote for.

    We agree on that. The fact that I didn’t vote for President Obama does not lead me to believe the world is going to hell in a hand basket. The fact that he’s already committed to spending thousands of billions of dollars more than the preceding overspending executive is what leads me to believe the world is going to hell in a hand basket.

    The fact that President Obama stated that he would like to appoint Supreme Court Justices on criteria other than interpreting the constitution as objectively as possible simply makes me brace for more well-meaning government intrusion into my life.

  • http://hathor-sekhmet.blogspot.com VRB

    Talk to me, when you truly become oppressed.

  • southernjames

    Yes, Akston – unless you are an African American who has personally experienced Jim Crow segregation, there is no way you can have ANY concept of what constitutes real or true oppression.

    Empathy-Schmempathy – if you didn’t personally experience it yourself, you can’t even begin to understand it.

    So just shut up and stop your whiny cracker complaining.

    Do I have that about right, VRB? May as well cut directly to the point, right?

  • Akston

    Allowing Justices to rule based on feelings rather that a strict interpretation of existing Constitutional law can be one of the roots of oppression.

    If you want to limit oppression, you need to move away from the subjective feelings of individual men, and towards a strict reading of written law. Then if the written law is unjust, you change the law.

    I’d rather be able to count on clearly-written laws that apply to everyone the same way, than to hope the court is currently filled with people who happen to agree with me and vote their feelings.

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