What makes a good judge?  According to President Barack Obama, the replacement he’s seeking for retiring Justice David Souter “must be an individual endowed with ‘empathy’.”

A recent article by Mike Rosen in the Denver Post explores the topic in greater depth.  Rosen notes that President Obama proclaimed of his potential Supreme Court nominee that ”‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily reality of people’s lives.’  (Oprah, perhaps?)  Compassionate and seductive as this pronouncement may sound to some, it represents a radical and dangerous departure from traditional American jurisprudence.”

“When empathetic judges rule on their feelings, they are exceeding their authority …  The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president.  The courts are a co-equal branch of government, not a superior branch.  Their job is not to rule on what they think the law ought to be.”

As noted in a previous post, there is a fundamental difference in principle between those (such as President Obama) who advocate for judges to render decisions based on “empathy”, twisting the law as necessary to reach a preferred outcome (as in recent rulings by our own Colorado Supreme Court), and those who hold judges accountable to exercise their proper function (and sworn duty) to uphold the rule of law. 

ALL citizens of Colorado (and the United States) are entitled to equal treatment before the law.  Judges who rule by “empathy” are playing favorites, “helping” a select few while harming everyone else.  Unless judges are restricted to their proper role as referees, not players, we all lose.

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