It’s a Gray Area:

News flash! The Obama administration will not be nominating me, or any other Libertarian, to fill the seat of retiring Justice John Paul Stevens on the Supreme Court of the United States. Among other things, the reason is that our judicial philosophy is to follow the law, and one of the stated important qualifications for the Obama administration is to employ the concept of “empathy.” Unfortunately, this is yet another example of the movement to “politicize” the judiciary, and this movement is leading us astray.

It is clear that empathy is a fine character trait for any human, and that certainly includes judges. But for judges to employ empathy in their decision-making implies that they would tend to find in favor of the “poor,” the “little guy,” the “minority person” or whatever group or cause that happens to be the object of public sympathy at the moment, regardless of the merits of the case. And, of course, that would come at the expense of the “greedy rich,” “nasty employers,” “big corporations,” or, well, you fill in the blank.

Also under this approach it would not be a big step for judges to start supporting one favored ethnic group, religion, gender or even political party at the expense of the less-favored. And I hope everyone will see that this is not where we want our justice system, or our country, to go.

Now that does not mean that judges are not frequently in a position to reasonably determine the equities or be affected by concepts of “fairness” in some cases. Far from it. In fact, if there were no interpretations or judgment calls to be made, we could simply hand our judicial robes to computers.

But, candidly, during my judicial career there were quite a few times in which I would hear small claims or other civil cases without a jury and inwardly root for the more sympathetic party. But once the evidence was submitted, as much as humanly possible, I tried to carry out my constitutional responsibilities and issue my rulings controlled by the evidence and the law. Naturally that also meant that I was required to follow the laws and judicial precedents as best I could, even when I disagreed. And I instructed my jurors that they were under the same obligations.