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.
From what I observed, former Chief Justice Rose Bird of the California Supreme Court would have passed the Obama administration’s empathy test. She certainly cared about people, which was fine, but she often was influenced by that caring to rule in favor of some parties, even when the facts, law and established legal precedent did not support it.
The problem with that approach is that it makes “forseeability” in the law almost impossible. Why is that such a problem? Because all disputes in society simply cannot be litigated. And fortunately they will not have to be, as long as attorneys and everyone else can, with some reasonable degree of certainty, anticipate in advance how the laws would be applied by the courts if the case actually did go to trial. This allows everyone to adjust their actions accordingly, which in turn allows society to function much more smoothly and efficiently.
Unfortunately we recently saw legal precedent virtually being ignored in the recent Citizens United case by the so-called conservative Supreme Court of Chief Justice Roberts. In that case, the Supreme Court held that corporations could spend without limits in elections for candidates or causes, as long as they spent the money separately from the political campaigns themselves.
The stated rationale was that the majority on the court felt, contrary to many prior Supreme Court decisions, that corporations should have the same constitutional rights as people. (And corporations just happen to have a tendency to finance more conservative causes.) So if I am right in my assessment, this is a political result, and thus a truly harmful way to conduct judicial business — if you believe in a neutral court system and the Rule of Law.
Of course, there are some rare occasions in which prior precedent should be rejected and new precedent established. For example, the 1954 case of Brown v. Board of Education of Topeka, Kan. broke away from the precedent established in 1896 by the case of Plessey v. Ferguson regarding the constitutionality of allowing “separate but equal” facilities for African Americans. But in that case the High Court had the benefit of the intervening 58 years of experience, which showed that the facilities were by no means equal, and also the benefit of changing times during which many people had come to realize that segregation was simply wrong under any reasonable sense of morality. But, once again, this should happen only rarely.
Having said all of this, I am proud to report that, based upon my 25 years as a trial court judge here in Orange County, I believe that most judges do their absolute best to follow the law. In fact, I am proud of our judges here and believe that you should be as well.
But at the same time I am deeply concerned to see the increasing politicization of our federal appellate courts. So I recommend that as we approach the upcoming elections, you consider only supporting candidates for Congress who convince you that they will only vote to confirm judges who, in turn, convince them that they will maintain the independence of the judiciary and follow the Rule of Law. Our country is based upon justice being independent from politics or favoritism of any kind, and each of us must do our part to keep it that way.
JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at firstname.lastname@example.org or via his website at www.judgejimgray.com .