For weeks we have heard the right wing lambaste President Obama's intention to nominate an empathetic person to the Supreme Court. The criticism is that empathy is irrelevant – or even harmful – to a judge's ability to interpret and apply the law.
According to Mr. Obama's critics, a judge's task is like an umpire's job of calling balls and strikes. An umpire needs only to know the rules that govern the strike zone and then make a value-free judgment about whether the ball went through it: Neither empathy nor a sense of justice is required. Likewise, a judge need only know the black-letter law and apply it evenhandedly: No value judgments – whether based on moral, policy, or other considerations – are required.
This claim is pure myth, and the right wing knows it. Consider that some right-wing pundits such as Rush Limbaugh temporarily warmed to the nominee, Judge Sonia Sotomayor. Why? The judge apparently is a Roman Catholic. This might mean that she is morally opposed to abortion.
But wait: Why would her moral views be relevant to whether she would be a good justice? Aren't good justices able to apply the law without appeal to any considerations outside the law's text, moral or otherwise?
The difference between the left and the right is not that the latter wants judges to follow the law and the former wants activists who ignore it. Rather, they disagree about which moral, political, and policy considerations should affect their interpretation and application of law. Right-wing pundits implicitly concede this point by hoping that Judge Sotomayor's moral beliefs about abortion comport with theirs.
As conservatives know, a justice's vote to affirm or overturn Roe v. Wade depends on that justice's views about many issues not dictated by law: When should judges follow precedent? When should they find an unenumerated constitutional right, as the Constitution's text permits? When, if at all, should women's reproductive choices be free from state interference? "Follow the law!" does not answer these questions.
In fact, as any law student will tell you, judges must regularly exercise discretion, apply amorphous standards, balance competing interests, and otherwise use their reasoned judgment to apply the law to a particular set of facts.
For example, the Fourth Amendment prohibits "unreasonable" searches and seizures. Are school district officials acting reasonably when they require drug testing of any student who wishes to participate in any extracurricular activity? Different people reach different conclusions about whether this search (and many others) are reasonable.
The Constitution also requires states to treat individuals equally. Does a state's prohibition of same-sex marriage treat people equally, given that all adults may marry someone of the opposite sex? Or does this policy treat people unequally, given that some of us may marry the person we love but others may not? The Constitution's text, by itself, does not even come close to answering these questions, which require a justice's reasoned decisionmaking. Analogizing such value-laden decisions to whether a pitch traveled over home plate is simply absurd.
Next term the Supreme Court will decide whether imprisoning a juvenile for life is cruel and unusual under the Eighth Amendment. How can anyone decide this without making value judgments? Perhaps a justice should simply ask whether the Founders thought the punishment was cruel. However, this position itself involves a value judgment about how to interpret the Constitution.
Some judges believe they should try to determine how the Founders would have decided a particular case. Other judges disagree, noting that the Eighth Amendment does not ban punishments that the Founders thought cruel and unusual, but rather punishments that are cruel and unusual. The Constitution itself does not provide instructions on how judges should interpret and apply its vague commands.
Moreover, even when the Founders' expectations are clear, those views should not necessarily prevail. The authors of the Equal Protection Clause did not think it prohibited states from criminalizing interracial marriage, although today we agree that the Supreme Court correctly ruled that it does.
Conservatives should acknowledge the complexities involved in legal analysis instead of damaging the public's understanding of a judge's role. As Judge Richard Posner has stated, "No serious person thinks that the rules that judges in our system apply ... are given to them the way the rules of baseball are given to umpires."
All judges appeal to their sense of justice to interpret and apply law. Let's publicly debate the issues facing our courts on their actual merits, which involve considerations of policy and justice, without the misleading bogus rhetoric about how only conservative judges impartially administer the law.