If you have never had the opportunity to be present during an oral argument before the Supreme Court, I should explain that it is one of the more awe inspiring things you will ever experience. Nine of our best legal minds sit in judgment of cases involving important legal issues as diverse as you could imagine. As an attorney appearing before that Court, you know that you may not prevail, but, you will receive a fair and impartial hearing devoid of everything except the law, and its application. And, that is how it should be.
So, I was a bit troubled when President Obama stated he was looking for someone with empathy to fill the seat soon to be vacated by Mr. Justice Souter. The president spoke about appointing someone who knows what it is like to be a single mom, or to be a minority, or to be old. Although I can not quibble with those qualities in any jurist, they can not be the basis upon which any legal decision is rendered, nor should they be the basis upon which anyone is appointed. Were that to be the case, we would need no laws, and, no legal system to interpret them. The person who needs the most would always prevail over the person who has the most.
What is ironic here is that one of the instructions, given to any jury before it deliberates, explains to the jurors that their verdict must not be based upon sympathy for either party. It is the epitome of our statue of justice, blindfolded, with only a scale to weigh the evidence.
So, President Obama, what I am looking for is a brilliant legal mind, free from your interference. It matters not to me whether that mind leans to the left or the right. What matters is that lawyers who appear before the Supreme Court in the future will know that their case will be decided upon the law, not empathy.