Prior to his presidency, Senator Obama famously announced that empathy would be his criteria for selecting judges. Although Sonia Sotomayor deemphasized her empathetic understanding of the law, many on the left still advocate empathy as the criteria for judges. James Gibson is no exception.
In a recent article, “Expecting Justice and Hoping for Empathy,” Gibson discusses his recent survey that revealed 68% of polled individuals strongly agree with the statement that justices should “Be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Gibson concludes that “if President Obama cares about what the American people want on the nation’s highest bench, he should return to the criterion of empathy.”
68 is a big number, but it’s not as large as 74.
74 is the percentage of respondents who strongly agreed with the statement that judges should “Uphold the values of those who wrote the U.S. constitution long ago,” making the constitution the top concern for selecting judges.
What were these “values” embedded in the Constitution from “long ago?” According to Matthew Spalding in We Still Hold These Truths: Rediscovering Our Principles, Reclaiming Our Future, the Constitution articulates the structural protections for eternal principles set forth in the Declaration of Independence—principles such as the rule of law, equal natural rights, consent of the governed, and limited government. If the Constitution acknowledges eternal principles, how should judges read the Constitution and apply it to modern problems? Keith Whittington explains the originalist approach in “How to Read the Constitution: Self-Government and the Jurisprudence of Originalism,” and The Heritage Guide to the Constitution provides a clause by clause analysis of the Constitution with essays from leading Constitutional scholars.
Gibson, though, ignores the Constitution’s meaning and the American people’s high regard for it. Let’s hope that President Obama does not continue to do the same.
