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Lady Justice Loses Her Blindfold

Lady Justice Loses Her Blindfold

By Robert Tracinski - July 13, 2009

As Judge Sotomayor is scheduled to begin her confirmation hearings for a spot on the Supreme Court, firefighter Frank Ricci-the lead plaintiff she ruled against in a reverse discrimination case-is also scheduled to testify.

So naturally, Ricci has become the target of a leftist smear campaign, which has already produced at least one result: a Ricci hit piece in Slate.

This kind of argument by character assassination is part of contemporary politics, and particularly the politics of the left-just ask Joe the Plumber. But on the eve of confirmation hearings that are supposed to plumb Judge Sotomayor's legal philosophy, what strikes me is that Ricci's history is irrelevant to the legal issues raised by Ricci v. DeStefano. The central issue of the Ricci case was whether an employer can throw out a test used as the basis for promotion, not because there was anything wrong with the test, but solely because of the low number of black employees who qualified for promotion under that test. In effect, the question was whether employers are required to adhere to straight, unadorned racial quotas in order to avoid charges of illegal discrimination. That was the position endorsed by Judge Sotomayor in an appeals court ruling-and rejected by the Supreme Court on June 29.

With these big issues at stake, who cares whether or not the safety complaints Ricci made against the Middletown South Fire District in 1997 were valid or not? And what about the other 17 plaintiffs in the reverse discrimination case, like Ben Vargas?

But the question of Ricci's past and character was opened up by President Obama's stated desire to appoint a Supreme Court justice who would base her decisions on "empathy." Under this standard-which is reflected in Sotomayor's own statements on her judicial philosophy-it suddenly becomes relevant whether or not Frank Ricci is the kind of guy for whom we should feel "empathy."

And under this standard, Lady Justice loses her blindfold.

There is a reason the figure of Justice is usually represented (most famously by Nicolas Mayer) as wearing a blindfold: it is meant to symbolize impartiality. Lady Justice is blind to whether a plaintiff or defendant is rich or poor, liked or disliked, politically connected or powerless. She decides only based on the facts she weighs in her scales. Blindfolded justice represents the ideal that the law should be administered based solely on facts and principles. A man's legal rights must be acknowledged and respected, even if you despise him.

But Judge Sotomayor has stated that she believes such objectivity is impossible. In a 2001 speech, she quoted approvingly a law professor's statement that "there is no objective stance but only a series of perspectives"-and, more ominously, another author's maxim that "to judge is an exercise of power." Sotomayor then concluded: "The aspiration to impartiality is just that-it's an aspiration, because it denies the fact that we are by our experiences making different choices than others." She later explains, "Personal experiences affect the facts that judges choose to see."

Hence the smear campaign against Frank Ricci. If there is no truth, just a "series of perspectives" which determine what facts we "choose to see," then cases like Ricci v. DeStefano will not be decided based on facts and reasoning. They will be decided based on which side has an empathy-inducing "narrative." So to support Sotomayor's ruling in the Ricci case, all you have to do is re-write Frank Ricci's narrative to make him less sympathetic.

After all, when you invite empathy into the courtroom, you also admit its flip-side: antipathy. When you admit the argument ad misericordiam, the appeal to sympathy, you also admit the argument ad hominem-the appeal to personal attacks.

This is an assault on the whole basis of the American legal system. And more: it is an assault on the 2500-year quest to institute the rule of law rather than the rule of men. Under the rule of law, the last thing you should have to worry about when you enter a courtroom is whether or not the judge likes you. All you should have to worry about is whether the facts and legal principles are on your side.

The impartiality of the law is a principle with wide application, but it has a special urgency in the era of Obama. With the president launching so many plans for his direct, personal intervention in the economy-firing CEOs, decreeing mergers, dictating the details of giant business deals-we urgently need the courts to serve as an impartial counter-balance.

Consider, for example, Chrysler's secured creditors, who were supposed to have first claim on the company's assets but were instead shoved to the back of the line, behind the UAW. How did President Obama justify this act of political looting? By vilifying the bondholders as unpatriotic Wall Street fat cats, i.e., by creating an unsympathetic "narrative" to be contrasted to the (allegedly) more sympathetic narrative of the union workers who might suffer if the UAW were treated more roughly.

What we need, in these circumstances, are judges who will make sure that the Wall Street investors still have a chance to have their day in court and argue for their legal rights-no matter who does or doesn't empathize with them.

President Obama is just returning from Africa, where he correctly pointed out that local economies are crushed by endemic corruption. It is not just the direct financial drain from bribery that destroys an economy; it is the uncertainty that undermines every business transaction. An economy is held together by the value of its contracts. It depends on all parties having confidence that the terms of a contract cannot be unilaterally rewritten and will be enforced impartially.

Yet that is precisely what President Obama is undermining at home. With the Sotomayor nomination, he is introducing the threat that justice will be administered differently for politically favored groups than for politically unfavored groups. The rule of law will be replaced by the rule of a judge's emotional empathy-or antipathy-as determined by what subjective "perspective" the judge chooses to see.

That's what is at stake in the Sotomayor nomination, and it has huge consequences for our lives and prosperity.

Robert Tracinski is editor of The Tracinski Letter and a contributor to RealClearMarkets.

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