Bryan Fischer
October 28, 2008
Obama's litmus test for judges: "empathy"
By Bryan Fischer

Perhaps one of the most enlightening and frightening elements of Sen. Obama's candidacy is the criterion he will use in selecting nominees to the U.S. Supreme Court.

If Obama is elected president, he is almost certain to appoint at least two justices in his first term, and possibly as many as four. Six of the nine justices will be more than 70 years old when the next president is sworn in on January 20, 2009.

Here are Obama's own words: "[W]e 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." (Emphasis mine)

In other words, in Obama's world, justice is not in fact blind, impartially weighing evidence in the scales. No, Lady Justice is allowed to peek from behind her blindfold and tip those scales in favor of politically correct classes of people.

This is both astonishing and dangerous. In Obama's world, a commitment to justice, the law, a respect for the intent of the Founders, and what is right and fair are no longer the primary values we should look for in judges. Instead, we should look for nominees who are intrinsically biased toward the poor and certain races.

This kind of classism and racism should have no place in a court of law. This is a fundamental denial of the genius of the American legal tradition, that we all have equal standing under and before the law.

Race, class, age, and sexual orientation should never give anyone the home-field advantage in a court of law. The only one who should have the home-field advantage coming into a courtroom is the one who is legally innocent, regardless of race, color or creed.

"Empathy" for some members of society over others is not even a qualification for public elective office. In fact, such favoritism is a positive disqualification for public service.

We need public servants, whether in the legislative, executive or judicial branches, who are committed to policies that are fair, even-handed and beneficial to every member of the culture, not just to favored segments.

This principle of equal justice under the law has operated in Western civilization for centuries and centuries, rooted in the civil code of ancient Israel. Note the balance articulated in its criminal code:

"Do not follow the crowd in doing wrong. When you give testimony in a lawsuit do not pervert justice by siding with the crowd, and do not show favoritism to a poor man in a lawsuit." (Exodus 23:2-3)

"Do not deny justice to your poor people in your lawsuits." (Exodus 23:6)

Thus in the Judeo-Christian worldview, the poor are neither to be advantaged nor disadvantaged before the bar of justice. The only thing that should matter is guilt or innocence.

However, in Sen. Obama's worldview, judges should in fact "show favoritism to a poor man in a lawsuit," the very thing the Scriptures condemn. Nothing could be more contrary to the values of the Judeo-Christian tradition or more pernicious to the cause of justice than a Supreme Court dominated by a black-robed oligarchy prepared to acquit the guilty because they belong to favored classes and condemn the innocent because they don't.

What the American people must consider as they prepare for the day of decision on Nov. 4 is that while the next president may serve for just four or eight years, his Supreme Court nominees will served for decades.

As Stephen Calabresi, co-founder of the Federalist Society, says in today's Wall Street Journal, "Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation's courtrooms."

© Bryan Fischer


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