American Elephants


Empathy Has No Place In Jurisprudence by The Elephant's Child

Kamala Harris is the new junior California U.S. Senator, replacing Barbara Boxer. She recently published an op-ed explaining why she would not vote to confirm Neil Gorsuch to the U.S. Supreme Court. She had previously held office as California’s Attorney General, so her failure to understand the Law is  truly shocking. In a tweet she said:

“Judge Gorsuch has consistently valued legalisms over real lives. I won’t support his nomination. “

“In other words, Harris has problems with Gorsuch because he believes in the rule of law and wants to follow the U.S. Constitution.

Her actual op-ed was also a real treat. After stating Gorsuch was impressive, she offers the same trite and thin analysis of his rulings that has been provided by progressive, social justice advocates.”

…The rest of Judge Gorsuch’s record also shows he’s willing to favor corporations over the American people. He believes companies can impose their religious views on employees and deny women birth-control coverage. And he has been hostile toward federal agencies that protect American workers and consumers.

Supreme Court Justice Thurgood Marshall, the civil rights hero who argued Brown and inspired my career, once bluntly defined his judicial philosophy, saying, “You do what you think is right and let the law catch up.” In simple terms, Justice Marshall appreciated that the ultimate goal of the law was justice. By stark contrast, Judge Gorsuch has consistently valued narrow legalisms over real lives. I must do what’s right. I cannot support his nomination.

Senator Harris has the frequent Leftist approach to the law, which is giving us so much trouble. The law is not about feelings, nor empathy, nor sympathy, nor pity. There’s a reason for the symbol of “Lady Justice.”

Lady Justice is the symbol of the judiciary. She carries three symbols of the rule of law: a sword symbolizing the court’s coercive power, scales representing the weighing of competing claims, and a blindfold indicating impartiality. This particular representation says:

Justice is the end of government. It is the end of civilized society. It ever has been, ever will be pursued until it be obtained or until liberty be lost in the pursuit.

The judicial oath required of every federal judge and justice says “I do solemnly swear (or affirm) that I…will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me… under the Constitution and laws of the United States, so help me God.

As I wrote back in 2015—

“Empathy” is the word that has caused so much concern. For empathy has no place in jurisprudence. Federal judges swear an oath to administer justice without respect to persons. If they are to feel more partial to the “young teenage mom,” the “disabled,” the “African-American,” the “gay,” the “old,” then they are not and cannot be impartial, and the rule of law counts for nothing. The “depth and breadth of one’s empathy” is exactly what the judicial oath insists that judges renounce. That impartiality is what guarantees equal protection under the law.

That is what the blindfold is all about.

Nobody said it is easy.

 

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And yes thing is, that whole “do what you think is right, and let the law catch up” quote can’t be found in Justice Marshall’s writings, and is probably apocryphal. What Marshall believe is that unjust and improper laws should be challenged, not simply ignored. Blatantly ignoring the law was something Marshall never advocated, but apparently doing so is fine for Ms. Harris.

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Comment by Lon Mead




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