Poor Douglas Kmiec. If he would only stop posturing as the poster-child for the tenacious 1960's American Catholic Rebels Without a Cause. If only. I have nothing personal against Kmiec, and I hope with all my heart to partake of the heavenly banquet with him, but his capacity for slothful thinking just begs to be answered.
I have to admit that of the mental gymnastics proffered thus far by Douglas Kmiec, this exercise, appearing in the most recent America magazine, takes the gold medal for pathos. The prose is affectedly breezy, but the overall impression is that of a desperate puppy wanting a pat on the head. His mission: To prove empathy as a primary qualification for the newest Supreme Court justice. (And perhaps to thus invite a nod of approval from our nation's leaders? I cannot say.) I thought the image above appropriate: This Lady Justice ain't blind.
I don't think he realizes (at least I hope he does not realize) that inserting the idea of "empathy" into jurisprudence is actually selling out to an entirely anti-Christian (un-Christian, pre-Christian, post-Christian, whathaveyou) worldview. Some thoughts:
1. The notion of impartial justice, the rule of one law judging each human action, which goes hand-in-hand with the idea of equality before the law, arose only as a result of the Christian revolution. The coming of Christ, opening up salvation to all human beings, changed the whole notion of the role of government and law. "Render unto Caesar" did not demand that Caesar start feeling the pain of every litigant who felt wronged. It did demand that Caesar (1) exercise authority only where God authorized him (remember Pilate?) and (2) that his laws be in accord with or not contrary to the divine law.
2. God came and "stood on our shoes," as Kmiec puts it, not so that he could "feel empathy" when we came before him in judgement (I think he already had a pretty good idea of what we feel when we either sin or do good). He came so that we might become perfect in every way, living testaments of God's self-gift of love. He came to redeem human action and call us to a higher law than any government has the right to impose. He thus freed Caesar to be just Caesar--not a psychiatrist, not our collective savior--and he freed us to obey Caesar (insofar as he is just) and the Father at one and the same time.
3. The Supreme Court is not a place for a collective therapy session. It would be nice if we were not fallen, finite beings. Then, when someone felt wronged, we could all group together, express our sense of hurt, and enjoy the empathy of a group of justices who then made everyone feel happy by redistrubting to each according to his or her need. But this is not the way we are. I understand that litigants are real people with feelings and moral tragedies in their lives. Feelings, however, cannot be the measure of good jurisprudence, because that will necessarily result in injustice (inequality before the law). Law will no longer mirror the unconditional love of the Father in judgment, but rather the pathetically limited feelings of the individuals on the Court. Kmiec's idea that it is "possible to feel empathy for all parties involved" is ridiculous. It simply will not happen because every individual justice will feel more or less the pain of each side of the case. We are human, not divine, and cannot know the inside of every other human person. To ask the Court to feel everyone's pain equally would be asking them to play God, which they cannot do. Acknowledging our human need for an impartial law is simply acknowledging our nature. It is limited and fallen. (Further, Kmiec's invocation of Micah against justices who are simply trying to stick to the law--which is the limit of their authority--is self-righteous and violates one of basic tenets of a liberal democracy.)
4. St. Augustine would roll over in his exalted tomb at the idea that: "If the California Supreme Court, for example, chooses to uphold Proposition 8 in a way that validates the selective oppression of one class of citizens, the empathy animating federal equal protection will be put to the test." In the Christian tradition, just law does not arise when law-makers (or interpreters) feel the pain of the people. It arises when, again, the government acts within the limits of its authority (which does not include the definition of marriage) and in accordance with divine and natural law.
5. For Kmiec to suggest that decisions based on an attempt (however imperfect) to judge actions according to the agreed-upon law of the nation (the Constitution) rather than upon a judge's personal ability to "empathize" are somehow "cold" or "heartless," is infantile. It reminds, me, actually, of what Miriam hopes I will do every day. She may find me to be cold and heartless because I suppress my empathy for her in service of a higher good--her safety or the harmony of our family. Empathizing with Miriam when she is angry and hits Isabella is good. But it does not fulfill my vocation to bring justice to my home. Allowing Miriam to express her anger in that way would mean doing injustice to Isabella. Similarly, "empathizing" with an underqualified minority teacher and forcing a school to hire her is to do injustice to her students.
Now, I know I just posted Strunk's viatribe againt opinion pieces. But, really, an unjustifiable opinion requires the response of a valid one. (I smirk wryly as I type that.)