Rao On Judicial Appointments
In a Richmond Times-Dispatch column, Professor Neomi Rao asks whether Supreme Court cases centered on critical issues should be decided through empathy, as has been suggested during this presidential campaign.
Pointing to the possibility that a president in the next four years may make at least one, and possibly more, appointments to the high court, Rao says a presidential candidate's judicial philosophy could be critical. In its present structure under Chief Justice John Roberts, the Supreme Court is one on which most of the justices cluster in the middle. Appointment of a judicial activist could easily push the court to one side or another.
"Empathy may be a laudable value for politicians, who can work to pass laws to protect the weak, and who we can vote out of office when we disagree with them. But federal judges serve for life, insulated from political pressures -- they lack democratic accountability because they are supposed to exercise impartial judgment based on the Constitution and laws of our country," says Rao.
Political Philosophy of the Next President Makes a Difference, Richmond Times-Dispatch, October 7, 2008. By Neomi Rao.
"The empathetic judge is not an impartial arbiter, but rather someone who knows how to bend the rules to come up with the 'right' result. This goes well beyond the now widely accepted idea that a judge's background and experience may influence his or her decisions. Rather, it is celebrating the judge who decides cases by individual predilection.
"Should the crucial cases to be decided by the Supreme Court, about individual rights and business rights, about environmental protection and protection of the nation, be decided through empathy? There are some jurists who have advanced similar notions. These were not moderate liberals, but rather activists for their causes. It is doubtful that any of the justices on today's court, even those considered 'liberal,' would consider their decisions to be driven primarily by empathy.
"Our Constitution as enforced by the Supreme Court goes a long way toward protecting minority rights, but this is a result of law, not empathy."