Stanley Fish has a new column up at the Times’ site about judicial philosophy and President Obama’s now-famous call for a judge with empathy. Conservatives are mad about the empathy comment, thinking that President Obama is calling for judges who will ignore precedents in order to stand up for America’s victims. Fish takes this position, arguing that law and justice are two different things. He writes,
This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”
First of all, I don’t know what the Hell Stanley Fish is doing quoting “Walter Williams at myrtlebeachonline.” But that’s a separate issue. The one at hand is whether judges should be automatons meant to read legalese and precedent and pop out a decision on a particular situation or whether they should be the guardians of a nation’s principles and character. The job of a justice is to interpret the Constitution, which lays down more than simple rules. If we agree that the Constitution holds America’s values, then certainly its interpretation must shift with those values. Brown v. Board (which Fish cites as an instance of judicial activism) stood in conflict with the past American ideology of (overt) segregation. To side with the plaintiff is to say that America’s values have and should have moved. If it is in the character of this nation to protect those who otherwise would be unprotected, then we need a shift in our interprative focus. If it is in our character to stand with big business, then our current justices and their interpretations are good enough.
Judges with empathy would hopefully see the American character they must reflect as just as interested in the welfare of Lilly Ledbetter as in the welfare of Goodyear Tires. Justices ought rule based on the values – not simply the opinions – of the society they represent. If empathy and taking responsibility for the consequences of one’s actions are not American values, then we have bigger problems than the fight to confirm a Supreme Court justice. And indeed we might. But to claim justices shouldn’t rule based on the consequences of their decisions is missing the greater point. Laws are made by the powerful mostly for the protection of the powerful, it’s a judge’s job to say when those laws conflict with the values of the United States, and the welfare of its citizens and fairness (the kind of justice I would like would say) are American values. We don’t call them “justices” because we don’t want them to enact justice. I don’t want a judge to rule for Lilly Ledbetter because she feels bad for the plaintiff. I want a judge who will rule for Ledbetter because paying a woman less than a man for equal work goes against what we hold dear: the values, not just the rules, enshrined in the Constitution.
All of this by way of saying, Diane Wood for associate justice of the S.C.O.T.U.S. because she does things like this:
Fornalik v. Perryman, 223 F.3d 523 (7th Cir. 2000): Wood, writing for the panel, held that an INS district office order putting a minor alien in deferred status pending an application to proceed as an abused child of a visa recipient under the Violence Against Women Act took precedence over an earlier removal order issued by another INS district office.