Now that the confirmation hearings of Supreme Court nominee Sonia Sotomayor have started, the word “empathy” is rearing its head again. The party of “no” has come out strongly opposed to choosing a new Supreme Court justice based partly on President Obama’s stated quality of empathy, and now the attack dogs are circling, claiming that Obama’s use of the word “empathy” is code for “judicial activism.”
The Republicans shouldn’t be too fast to reject empathy. The most notorious Supreme Court decision of the past decade, Kelo vs. New London, could have done with a little empathy on the part of the Supremes. The city of New London, Connecticut, as part of an economic redevelopment plan designed to boost a sagging economy, decided to take by eminent domain an entire residential neighborhood to build a complex of for-profit, privately owned enterprises that included upscale housing, a high-end hotel, office space, and even a day spa. The 2005 Supreme Court decision, which affirmed a municipality’s right to take property by eminent domain for private enterprises as long as it could be judged to be for the higher good (possible translation: for higher property taxes than a residential owner could pay), put every homeowner in the country at risk at the hands of politicians and corporations. Empathy might have gotten the justices down out of their ivory tower long enough to anticipate the horrible consequences to ordinary citizens of this ruling; empathy might have allowed the justices to put aside their naïve, idealistic view of the world long enough for them to recognize not just the possibility, but the probability that corruption would taint the process.
The plaintiff, Suzanne Kelo, and her neighbors watched their neighborhood razed to the ground; homes were destroyed, but more than that, a complex, supportive social structure was torn apart as neighbors who had known each other for decades were uprooted and had to say good-bye. Four years after the Supreme Court decision, the former neighborhood is an empty lot, the private development company having abandoned the project. Litigation and damages have cost the city of New London millions of dollars. Supposedly trustworthy public officials charged with making the decisions involved with the redevelopment plan landed in the slammer for unrelated corruption charges; notably, then-Governor John Rowland, an early supporter of the redevelopment plan, ended up spending several months in prison for misusing his public office—not a sterling recommendation for his judgment on the New London redevelopment plan. Meanwhile, the entire New London debacle has apparently benefited no one.
Judges, including Supreme Court justices, need to be impartial, so that plaintiffs and defendants can have a fair hearing before the courts. But judges cannot be so cut off from the real world that their decisions are merely intellectual arguments devoid of any understanding of the consequences of their rulings. The law is created so that human beings have some kind of legally enforceable parameters about how to function in a complex society, and stripping the law of an understanding of its effect on humanity renders it useless or, infinitely more serious, dangerous.
