THOMAS SOWELL COMMENTARY: "Empathy" Versus Law

The conservative commentator discusses the search for a new Supreme Court justice: "People who are speculating about whether the next nominee will be a woman, a Hispanic or whatever, are missing the point. That we are discussing the next Supreme Court justice in terms of group 'representation' is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land. That President Obama has made 'empathy' with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process. Would you want to go into court to appear before a judge with 'empathy' for groups A, B and C, if you were a member of groups X, Y or Z? Nothing could be further from the rule of law. That would be bad news, even in a traffic court, much less in a court that has the last word on your rights under the Constitution of the United States. Appoint enough Supreme Court justices with 'empathy' for particular groups and you would have, for all practical purposes, repealed the 14 th Amendment, which guarantees 'equal protection of the laws' for all Americans. We would have entered a strange new world, where everybody is equal but some are more equal than others."

Mr. Sowell continues his commentary: "The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues-- whether private property, abortion or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law -- what has been called 'a government of laws and not of men.' Under the American system of government, this cannot be done overnight or perhaps even during the terms in office of one president -- but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees. Some people say that who Barack Obama appoints to replace Justice Souter doesn't really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with 'empathy' -- which is to say, with justices who think their job is to 'relieve the distress' of particular groups [as did Adolf Hitler, in his arguments about the law], rather than to uphold the Constitution of the United States."