The price of empathy

Stuart Taylor writes about why we should not be looking for empathy in a judge. As Taylor points out, often those policy decisions that are motivated by empathy lead to unintended consequences that harm those the policies were originally intended to aid.

Another reason to be wary of the "empathy" criterion is that decisions by justices (as well as legislators) who thought that they were helping the poor and the powerless have often had the unintended consequence of hurting a great many poor and powerless people in the long run. Examples include heavy racial affirmative action preferences for blacks and Hispanics in college admissions, judicial decisions requiring due process hearings before disruptive students can be disciplined, rent control laws, and generous welfare programs for single mothers.

He once again debunks the myths that have grown up around the Lily Ledbetter case. Plus that was a case that proved that you didn't need judges with empathy. The Supreme Court applied the law as written. Congressmen didn't like the result and they changed the law. That is all that judicial conservatives are advocating - put the decision-making in the branches of government that are responsive to the electorate and which are given that responsibility by our Constitution.

And then Taylor has a lot of fun with Ruth Bader Ginsburg's lament that male judges can't fully empathize with the 13-year old girl subjected to a strip search by a female administrator because she was accused of hiding an Advil.

Another problem with the "empathy" criterion is raised by Justice Ruth Bader Ginsburg's recent remarks in an interview with USA Today about a case in which school officials looking for pain medicine strip-searched a 13-year-old girl. Ginsburg complained that the male justices, some of whom seemed skeptical of a lawsuit seeking monetary damages from the school officials who strip-searched the girl, didn't understand what a sensitive age that is for young females. "They have never been a 13-year-old girl," she said, in stressing the need for more female justices.

I share Justice Ginsburg's view that Obama should add one or more women to the court. An almost-all-male court is an unfortunate symbol at a time when women are rising to parity in so many other areas of the legal world, and when many superbly qualified women are available.

But does Ginsburg's statement, taken to its logical endpoint, suggest that female justices should tilt the law in favor of female litigants, at least some of the time?

Well, if Ginsburg's statement means anything, it means that a strip-search might be more traumatic for a 13-year-old girl than for a 13-year-old boy. How would she know that? Unlike her colleagues, she has never been a 13-year-old boy.

There may be cases in which a female justice's life experience might help her understand a female litigant's problems better than male justices. But I doubt that the strip-search case was one of them. Not unless Ginsburg meant to suggest that the justices should sometimes rule in favor of strip-searched 13-year-old girls while ruling against strip-searched 13-year-old boys in otherwise identical fact patterns.

And what else could she mean?

When Obama talks of seeking the quality of empathy for the poor or disabled, he means that judges should put a thumb on the scale of justice to get the result that will help those with whom Obama empathizes. But that isn't how justice is supposed to work in this country. Let the legislators pass laws to help those people if they wish. But let the judges in our land apply the law without any attempt to reach a result that helps one favored group more than another simply because that group is more unfortunate than the other side.