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Empathy now



Was it mere coincidence that President Obama spoke of seeking empathy in a new U.S. Supreme Court justice only a day after the Arkansas Supreme Court had demonstrated conclusively the importance of empathy in all appellate judges? Perhaps not.

The president has a nose for injustice, even in small Southern states that didn't vote for him. It's not inconceivable that he's been following the legal challenges to Arkansas's “tort reform” law, a sizable injustice that was perpetrated on the people of Arkansas by their elected legislators in 2003. Corporations, physicians and other members of the economic upper crust decided they needed additional protection from lawsuits filed by people they'd injured. The legislature obliged overwhelmingly, typically eager to help those not in need. Proponents of the bill never came close to making a case for it; didn't matter.  It's said you don't need evidence if you've got the judge, and it's equally true that you don't need facts if you've got the legislature. The fat cats usually have it.

Failed by the legislative branch, the little people could only go to court to question the constitutionality of an unfair statute. Last week, the Arkansas Supreme Court unanimously ruled key provisions of the law invalid. The justices did what the legislature should've, assuring that poor as well as rich get their day in court. And only 24 hours later, President Obama said he wanted  “empathy and understanding,” along with a solid legal background, in the new U.S. Supreme Court justice he's about to appoint.

Empathy and understanding are not conspicuous in a majority of the justices of the present U.S. court. They see themselves as champions of a fairly small group of Americans who look and think just like themselves. Try to imagine Antonin Scalia, the leader of the court, having “empathy and understanding” for someone who's not white, rich, male and Catholic.

Like the Arkansas legislature, the U.S. Supreme Court is quick to protect those who are not in danger. Real victims are viewed less charitably; they were asking for it. The majority's lack of empathy for the average American resulted in the Court's hijacking of the 2000 presidential election, installing the court's choice for president instead of the people's, the most monstrous case of “judicial activism” in American history. Republican Sen. Orrin Hatch of Utah says he's been assured the president will not appoint radicals or extremists to the Court. This is wonderful news. The Court has too many radicals and extremists already, too many Scalias, Thomases, Robertses et al, all appointed by Republican presidents. Rescuing the country from them will be a long process, but it can begin with a single justice.   


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