Today President Obama reaffirmed his commitment to ethereal touchy-feely qualifications as an overriding qualification of a new member of the Supreme Court. Citing "empathy" as the leading qualification of his nominations for spots among the nation's top jurists, Obama risks placing the outcomes of particular cases -- and non-legal ideas about who the "good guys" are -- ahead of things like the rule of law and the durability of ostensibly inalienable rights.
If courts wanted the "good guys" to win instead of enforcing the law, we'd end up at the end of the day with a popularity contest instead of consistent and predictable law on which one could plan one's personal and business future. Imagine for a moment that whether you had property rights, or a right against unreasonable search and siezure, turned on whether some members of the court thought you were "good" instead of whether the search met certain criteria designed to protect citizens from an overreachign police state. Imagine that whether your property had been taken for public use depended on whether a judge had sympathy for the ostensible public use, or whether the judge thought you were being a "good citizen" while your property was threatened.
The rule of law exists -- if it exists at all -- when offensive, rough-hewn outcasts are protected as carefully from intrusions and trespass as the courts protect schoolteachers, firemen, and physicians.
We don't need "heart" on the Court, we need literacy. We need a sober capacity for imagining how a rule's application -- or withdrawal -- would affect the lives of ordinary people utterly different in sympathetic character to the poor sucker whose case has made it to the Supreme Court. This is because most people never get to the Supreme Court. We don't need the court to sort out everyone's problems -- it's too busy for that -- we need a court that will announce clear rules along which lines the entire country can be predictably governed.
We do not need a call for judges to rule for those whose plight invokes sympathy -- that's what juries are for -- we need rules that will further traditional American objectives of securing personal liberty and promoting clarity of law that prevents avoidable litigation.
"Heart" and "sympathy" are great qualities in jurors, but make little sense to praise as the leading quality of a competent jurist.
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