From the Bishops President Obama and Lady Justice: The Supreme Court and its Judges

In the Old City of Berne, Switzerland, there stands the famous “Fountain of Justice” (Gerechtigkeitsbrunnen).  From the 16th century until modern days, Hans Gieng's statue of Lady Justice has graced the fountain.  It is the oldest representation of Lady Justice blindfolded.


This image of Lady Justice traces its origins to Themis, the Greek goddess of divine order and law, and to Justitia, the Roman goddess of justice.  In her left hand, Lady Justice holds a scale.  This signifies duty to measure the strengths of each case, weigh the evidence and then decide the case.  In her right hand, she wields a double-edged sword.  This signifies her obligation to execute her judgment with precision for one party or against another.


Coins from the days of ancient Rome depict this image of Lady Justice without the blindfold.  Her eyes are open and she sees all the evidence before her.  But ever since the Renaissance, Lady Justice has appeared with her eyes blindfolded.  In the dispensing of justice, there should be complete objectivity.  Blind justice.  No cowering before the powerful.  No trampling of the weak.  No favoritism to any party.  Complete impartiality.


This symbol of Lady Justice blindfolded is found in our courthouses and halls of justice.  Could this symbol lose its meaning?  Should the very notion of justice in an era of change be redefined?


With the retirement of Supreme Court Justice David Souter, our new President will have his chance at appointing his first Supreme Court judge.  Other appointments will surely follow.  The President has made clear his own understanding of the qualifications needed for the post.  The President has reiterated the tried and true requirements of extensive legal training and experience as well as a devotion to the rule of law and a sound ethical record.  But he also has added another prerequisite.


In July 2007, at a conference of Planned Parenthood, the President, prior to his election, had said this about future judges: “We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom.  The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.  And that's the criteria by which I'm going to be selecting my judges.”


On Friday May 1, 2009 during the White House press briefing, the President said, “I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation… I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”  The President once again is remaining true to another promise that he made during his campaign for the presidency.


For centuries, Western civilization has tried to achieve equal justice under the law.  Does the requirement of empathy in a judge mean Lady Justice must now take off her blindfold?  Is this a change for the better or not?


The President’s insistence on empathy as a quality in a good judge can claim biblical precedent.  When Solomon began his rule, he prayed at Gibeon.  He asked God not for riches and wealth, but for “an understanding heart, to govern [his] people and to distinguish between right and wrong” (1 Kgs 3:9).  God granted him his request for empathy and his judgments became legendary.

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In 1 Kings 3:16-28, the Scriptures relate an example story of Solomon’s ability to judge because he was empathetic.  One day, two prostitutes came before Solomon.  They both had a son, but one son died.  Each woman claimed that the son that was alive was hers. Solomon was empathetic to the feeling of the true mother.  He knew that she would prefer her son to live.  And, so when he proposed cutting the live child in half and giving each woman half, the heart of the true mother was revealed.  She preferred the other woman to have her son alive rather than each to be given half his dead body.


Solomon as a judge was empathetic.  It was his “understanding heart” that saved the life of the child of a marginalized woman who was a true mother.  “The wisdom of God was in him to do judgment” (1 Kgs 3:28).


Is Solomon the appropriate paradigm for the role of judge today?  It is good to remember that the empathy that served Solomon well was not something he acquired on his own through training or experience.  It was a gift that God gave him in answer to his prayer.  Furthermore, Solomon was not limited to one role in governing his people.  He was king and legislator as well as judge and last court of appeal.


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Centuries have passed.  Today in our democratic society, many people would be very uncomfortable in trusting to one individual, no matter how wise or spiritual, all the power that Solomon wielded in his day.  We are in an imperfect world.  In such a world, we have a system where the legislator is separate from the judge and where rights are guaranteed by law.


Courts decide between the guilty and the innocent.  Courts do not make the laws.  They make their decisions on the basis of rights guaranteed in the law.  Therefore, in a court of law, economic condition, sexual orientation, educational background can never be the determining factors.  If a judge is to give special consideration in his decision to his own empathy, the question then arises, to which party in a case should he be empathetic?  Would this be the death knell to impartiality?  Will we suffer the tyranny of the courts where judges refashion our society according to their own opinion or political agenda?


Legislators elected by the people make the laws.  Judges appointed by the government apply them.  The distinction works.  Lady Justice is blindfolded.  But if the blindfold is going to be removed by a President who makes empathy a requirement for Supreme Court judges, will we have judges like Solomon?  Will we finally have judges, as in the case of Solomon, with “an understanding heart,” judges who recognize a true mother always safeguards the life of her child?  Will we have judges who protect the life of children, even those not yet born?  Without empathy to those most vulnerable, there is no justice for all.

Reprinted with permission of The Beacon, newspaper of the Paterson Diocese.

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