Magazine article First Things; A Monthly Journal of Religion and Public Life

Empathy & Apathy

Magazine article First Things; A Monthly Journal of Religion and Public Life

Empathy & Apathy

Article excerpt

During the presidential campaign Barack Obama declared, with no inadvertence, that among the furnishings of mind he would seek in an appointment to the Supreme Court is a keen sense of empathy for the less privileged in this country. And sure enough, now that he is president his nomination of Sonia Sotomayor reveals a man more inclined to play on the clichés of identity politics than to seek a jurist who could stand on the intellectual plane of those we admire on the Supreme Court.

Conservative commentators have been scathing in their reactions to a jurisprudence that takes its bearings not from the principles of law but from sympathy toward the litigants less wealthy or less connected to the circles that matter in the world. And yet it has somehow gone unnoticed that even the most celebrated jurists weave into their judgments an understanding, drawn from experience, of the way the world works for ordinary people. Conservatives would offer a false account of the jurists they admire if they did not recognize the richness of experience and empathy that is already amply on display in the judgments of Justices Scalia, Thomas, Roberts, and Alito.

The more critical part, however, is that the commentators have seemed to concede to jurists on the liberal side an empathy that is not only implausible but a facade that covers a corruption running deeper. Just what this corruption is may be seen in three vignettes drawn from our recent experience.

The annals of Empathy in the Law might well begin with this notable case: Judge Maryanne Trump Barry, sister of Donald Trump, was appointed to the federal bench by President Reagan and elevated to the appellate court by Bill Clinton. Just after the Supreme Court struck down the bill on partial-birth abortion in Nebraska in June 2000, Barry and her court handed down their decision that struck down the comparable law in New Jersey.

In the grisly procedure of partial-birth abortion, about three quarters of the body of the child dangles from the birth canal. The head of the child is then collapsed, either by crushing with forceps or puncturing with a sharp instrument so that the contents of the skull can be removed. In either case, the child is removed, so to speak, intact. And no parts are left behind in the body of the woman, where they might cause infection.

Judge Barry could have relied on the judgment of the Supreme Court, announced only a few weeks earlier, striking down the comparable bill in Nebraska. Barry could have disposed of the law in New Jersey quickly, without passion or bias. Instead, Barry took the occasion to display an unseemly passion in quashing the statute. She expressed nothing less than contempt for the effort to draw a line between the child in the womb and the child at the point of birth. That distinction has been known to common sense for millennia, but the application in these cases, she thought involved "semantic machinations, irrational line-drawing, and an obvious attempt to inflame public opinion ___ The legislature would have us accept and the public believe, that during a partial-birth abortion the fetus is in the process of being born at the time of its demise. It is not A woman seeking an abortion is plainly not seeking to give birth."

This was postmodernist jurisprudence with a vengeance. The mother had elected an abortion- and once she had made that fateful choice, there was no child to be killed, no birth to take place. As Judge Barry said, the pregnant woman was "plainly not seeking to give birth." What the judge saw in the case involved no objective facts and certainly no empathy for the child. It depended, instead, entirely on the theory she was willing to install, looking out on the world.

Consider, as well, this second moment: In 1999, an enlisted man in the Air Force named Robbins had beaten bis wife and killed the child she was carrying in her womb. The military prosecutors came down hard on the assault inflicted on Mrs. …

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