How to Pick a Judge

Barack Obama's nomination of Sonia Sotomayor for the Supreme Court has sparked a firestorm of chatter about what makes a good judge. Many people, including Obama himself, are vying for someone who shows "empathy." Others want an "impartial" candidate and some advocate judicial activism. If you are trying to figure this out for yourself then consider the oath, shown below, that each federal judge must take prior to assuming office:

"I, XXX XXX, 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 as XXX under the Constitution and laws of the United States. So help me God."

Let's break this down......

1. "I will administer justice without respect to persons"
If judges are supposed to rule on cases without respect to persons then how does "empathy" fit into the equation? The dictionary defines "empathy" as follows:

1: the imaginative projection of a subjective state into an object so that the object appears to be infused with it
2: the action of understanding, being aware of, being sensitive to, and vicariously experiencing the feelings, thoughts, and experience of another of either the past or present without having the feelings, thoughts, and experience fully communicated in an objectively explicit manner ; also : the capacity for this

Wouldn't "being sensitive to..... the feelings, thoughts, and experience of another" person qualify as the complete opposite of "without respect to persons"? Strike one for empathy and judicial activism......

2. "... and do equal right to the poor and to the rich"
'Equal" is the operative word here. If judges are supposed to look at everyone equally then why should it matter if a candidate came from an impoverished family or a wealthy one? Why is a candidate's personal background and upbringing so vitally important in the selection process? According to the first two phrases of the judicial oath you're supposed to leave your background and personal beliefs behind. Strike two for empathy and judicial activism....

3. "I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States."
Wow, there's that word "impartial"! Amazing how it's actually in the oath that judges are required to take! Reading further you see the phrase "under the Constitution and laws of the United States." If you search for a definition of "judicial activism" you'll find that it's defined as a "philosophy advocating that judges should reach beyond the United States Constitution." Interesting.... the oath says "under the Constitution," but judicial activists "reach beyond" it. Anyone else see a contradiction here? And with the "duties incumbent upon me" being outlined in the first few lines of the oath doesn't it look like judges have a responsibility to approach each and every case through the eyes of the law and ONLY the law. Not through their past experiences, not through their hearts and certainly not through political pressures or consideration of what ruling might be less controversial. Strike three for empathy and judicial activism.

So this leaves us with "impartial." Again, I find it interesting the the word is in the oath itself when the others are not and/or actually stand for the opposite of what the oath says. A recent Gallup poll shows that most Americans say it doesn't matter whether or not the next Supreme Court Justice is a woman or a minority (Hispanic or black). Why does the media make such a big deal out of it when most people don't see it as an important issue? Could it be that they don't support a nominee whose record coincides with the very oath that judges take?

The bottom line is that judges are supposed to be impartial. If that's the criteria - and the oath says it is - then the race or gender of the candidate shouldn't matter. While Sonia Sotomayor's record may show that she's somewhat "moderate," I believe there is no room for moderates on the bench. Laws are meant to be changed in Congress, not the Supreme Court. When it comes to the courts, judges should call it according to the law, regardless of whether or not they agree with the outcome. If we get 9 black females on the bench that can do it, fine. 4 Hispanics and 5 white guys, fine. If we're really selecting judges based on the criteria that have been set out then background, rich, poor, man, woman, black, Asian, white etc. shouldn't make any difference.

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