From my column today on “empathy” and the Supreme Court:
According to Obama — a former law instructor — in 95 percent of the cases, precedent and the law are clear enough for judges to go with the rules, but in the last 5 percent, judges have got to have a heart that bleeds for certain kinds of people.
Last week, the president offered a more populist spin, saying he wants a nominee who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” The Associated Press calls this a “fight-for-the-little-guy sensibility.”
According to Obama and countless other liberals, this sort of compassion in the law is “pragmatic” because it pays heed to the real world and real people as opposed to legalistic abstractions such as impartial justice. As former Boston Globe columnist Ellen Goodman put it last year: “I’ve never been sure why Lady Justice wore a blindfold as part of her permanent wardrobe. Yes, it’s supposed to be a symbol of impartiality. But it does limit her vision a bit.” For Goodman, the best judges reject the “myth” of impartiality.
Of course impartial justice is an abstraction, but it isn’t so much a myth as an ideal. Since we are all designed from the crooked timber of humanity, we can only approximate perfect justice.
What I don’t understand is why we should abandon an ideal simply because it is unattainable. If I can’t be a perfect husband, should I get a divorce? If an umpire can’t call each game flawlessly, should he stop trying? Maybe for 95 percent of pitches the ump should call ’em straight, but for the other 5 percent he should give the black or gay batters the benefit of the doubt?