significant that President Obama cited “empathy” as one of the attributes
that he would look for in a U.S. Supreme Court nominee. Significant,
because that quality seems to be lacking in the halls of power in
America, including the court, itself.
the chatterers on the nation’s air waves, who provide the delivery
system for the propaganda of the ruling class, attacked him for
seeking a nominee who presumably would cast votes on the high court
on the basis of emotion, rather than the rule of law.
he may have meant was that his nominee to replace Justice David
Souter should be someone who, in rendering decisions on the high
court, could understand the effects of the court’s decisions on
the daily lives of the people who are living under the laws as they
are interpreted by just nine persons, often by a vote of 5-4.
“empathy” that Obama is looking for would be a significant factor
in the outcome of future decisions on the court, especially if the
justices can actually put themselves in the places of ordinary Americans,
as they live their lives, always with an eye toward how their actions
will be interpreted by those charged with upholding the law.
day, arbitrary interpretations of law by law enforcement officials
or even by the courts result in somebody’s long involvement with
the criminal justice system. Once you are so marked, it’s difficult
to escape from the legal entanglement, possibly for a lifetime.
a person’s “judicial temperament” and whatever his or her political
bent, the power to forever alter another’s life should be a consideration
in making decisions at the highest levels of the justice system.
That’s where “empathy” comes in - empathy, the capacity to recognize or understand another’s
state of mind or emotion.
empathy was not the best word for one of the qualities of a Supreme
Court justice, but it is an important quality for anyone in a leadership
or official position.
president might have said simply that he wanted someone who is not
only highly qualified, but also one who understands the effects
of legal decisions on whole segments of the population - minorities,
women, workers. The state of mind or emotion of an individual or
a group of Americans will be directly affected by any decision of
the nominee and the other eight justices.
why the replacement for Justice Souter should be someone who is
able to discern - through the haze of politics and the pressures
of the political, legal, or philosophical groups with which a justice
associates - the effects of decision-making on Americans’ daily
this is a far from perfect entity, this democratic-republic, if
it was founded to be “of the people, by the people, and for the
people,” it isn’t just the legislative and executive branches of
government that need to understand, and respond to, the needs of
laws that the justices interpret are enacted by representatives
in Congress and signed by the president, in response to a need of
the people - not to an individual, but to the general welfare of
made by nine justices should be a check on the other two branches
of government, rather than an auxiliary branch of the other two.
Every one of them, when they come to vote on a case, should be asking,
“What will be the effect of this decision on the people? Will this
decision be just for the people?”
status quo puts Corporate America in charge of the economy and,
to a great extent, the political life of the nation. The people,
though they have a right to cast a ballot, do not have much of an
impact on the direction of the country - and that’s to their detriment.
That may be why Obama seeks someone who has “empathy.”
Toobin, writing in the May 25 issue of The New Yorker, noted
that Justice John Roberts said at his confirmation hearing that
judges are like umpires, that they play a limited role, but that
“nobody ever went to a ballgame to see the umpire.” He would be
such a judge, Nominee Roberts said. He would, he said, conduct himself
with “modesty and humility.”
four years on the court however,” Toobin continued, “Roberts’s record
is not that of a humble moderate but, rather, that of a doctrinaire
conservative. The kind of humility that Roberts favors reflects
a view that the Court should almost always defer to the existing
power relationships in society. In every major case since he became
the nation’s seventeenth Chief Justice, Roberts has sided with the
prosecution over the defendant, the state over the condemned, the
executive branch over the legislative, and the corporate defendant
over the individual plaintiff. Even more than (Antonin) Scalia,
who has embodied judicial conservatism during a generation of service
on the Supreme Court, Roberts has served the interests, and reflected
the values, of the contemporary Republican Party.”
probably not necessary to point out that most Americans do not associate
with national politicians, corporate executives, or Supreme Court
lives are very dissimilar, since the politicians, corporate executives,
and judges and other members of the bar are the ones in control
and in power. It’s likely to remain so for some time to come.
is a bad time for the people, for wage-earning Americans, and every
day, more and more of them are thrown onto the unemployment rolls
and, because of the loss of so many millions of well-paying jobs
in recent months, many millions more Americans are going without
health care for themselves and their families than the 47 million
that are usually noted.
power brokers in the U.S. are suffering no such
losses in their personal lives, yet. It’s very easy for them to
make every effort to maintain the status quo, because they have
no idea what it’s like to scramble for money to pay the rent, for
food, to take a child or spouse to the doctor. These are things
that powerful people and the well-off don’t think about, but workers
think about them all the time, especially when they are without
when a little empathy goes a long way. It would be a good thing
if more politicians and CEOs showed a little more of it. As it is,
if Obama finds a Supreme Court nominee with a measure of empathy
it’ll only be a good start.
BlackCommentator.com Columnist, John Funiciello, is a labor organizer and former union organizer.
His union work started when he became a local president of The Newspaper
Guild in the early 1970s. He was a reporter for 14 years for newspapers
in New York State. In addition to labor work, he is organizing family farmers as
they struggle to stay on the land under enormous pressure from factory
food producers and land developers. Click here
to contact Mr. Funiciello.