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President Obama will have an opportunity to nominate a justice for the United States Supreme Court to replace Justice Souter who will be leaving the court. President George H.W. Bush nominated Souter in

The President said he would look for someone “who respects the integrity of the judicial process and the appropriate limits of the judicial role.” He said legal experience, education, and intelligence are foundational. That doesn’t sound so liberal does it? Well in the strict conservative mind-set he made the mistake of saying that “I will seek someone who understands that justice… is also about how our laws affect the daily realities of people’s lives, whether they feel safe in their homes and welcome in their own nation." –Pretty outlandish statement according to some.

Many in the President’s opposition party was upset that he suggested that his nominee have heart and empathy. That goes too far, it was said. Dictionaries define “empathy” as caring, one who has the capacity for understanding and sharing the interest of another—even concern or compassion. We certainly don’t want that in a judge! Some opponents apparently have the power to even change the meaning of words. Sen. Orren Hatch (R-Utah) said that “empathy” is a code word for an activist judge. That’s a new one. I haven’t heard that an empathetic judge meant an activist judge in 41 years of practicing law. Former Republican Party Chairman Ed Gillespie implied on Meet the Press, having empathy is a concern. Others have said that having empathy means judging before one hears the facts. Where does this stuff come from, and how can it be sold? Why would anyone buy it? But it is sold and bought, because people see what they believe, not the other way around.

We wouldn’t want to have a justice that has a heart would we? The President said 95 percent of cases can be judged on intellect, but …”In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be.” Heart must be a bad thing, however when President Bush nominated Harriet Miers he said “I’ve known Harriet for more than a decade. I know her heart, I know her character.”

So maybe heart is OK—maybe it is just a case of whose heart, or whether the heart is hard or not—or maybe it’s about who or what empathy is for—people or big corporate CEOs and their mega

The President said, he doesn’t want someone that just sits in an ivory tower, but someone with intellectual heft, a common touch, common sense and a practical bent of how the world works. Sounds pretty good to me, how about you?


  1. Gravatar for Jon Lewis

    Greg, what a great post. How can anyone argue with a Judge who has a heart? says, "to do justice is to act or treat justly or fairly and to appreciate properly."

    When the facts of a case make it unclear which way the verdict should fall (not uncommon at the Supreme Court level), you want a Justice who understands life; who understands people; who understands the ramifications of his/her decision.

    Unfortunately, many decisions are made based upon economic grounds and not decisions which are fair, just, and proper. Ruling with your heart does not mean ruling with sympathy or against the law. It's just another factor when a case is not clear with respect to the lines drawn by the law.

  2. Gravatar for Greg Cusimano

    Thanks Jon. I like this quote: "To act justly, to love mercy and to walk humbly with your God." (Micah 6:8) Not bad for a judge.

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