It’s understandable that it boils down to that, but the reality is somewhat different. Some us who are pro-life and do consider this the most important factor not only in voting, but in judicial nominations, also see it in a broader context. There have been many areas where liberalism—at least the pre-1968 version of it—brought great changes to American life. From the civil rights movement to the push for Medicare. From the New Deal and the establishment of Social Security, to the push for real workers’ rights, the progressives were on the side of the angels from the turn of the century to the advent of the Vietnam War. But on no political issue have they been more disastrously wrong than on the role of the judiciary—and unlike moral issues, their errors didn’t start with the 1960s radicals. The judges that would begin wreaking havoc on our legal system were already in place then. Nor was this all the fault of the Democratic Party—indeed seven of the nine judges on the Court that promulgated Roe in 1973 were appointed by Republicans. Roe still stands in spite of all the appointments made by Gerald Ford, Ronald Reagan, Bush I & Bush II (eight in all). This is not about scapegoating one particular party, but rather about indicting an overall philosophy that is not appropriate to the bench.
When he sought out Sonja Sotomayer to become the newest member of the High Court, President Obama said he was looking for a judge with “empathy.” Now empathy is a nice personal quality. But it can’t work when interpreting law. In Obama’s vision—one that is standard liberal belief—the judge should look at a situation, decide who’s most worthy of sympathy and decide the case in their favor. It has a certain feel-good appeal. But what happens to stability in law? A society can’t function without some clear guidelines and if you wonder how a judge is going to rule based on whether he/she empathizes with you or not, there is no stability. Chaos takes it place.
A judge has to be society’s impartial umpire. So think about it this way. In the recently concluded playoff series, the Minnesota Twins were worthy of sympathy as they battled the New York Yankees. After all, the Twins have about a quarter of the payroll the Yanks do and not nearly the depth. They were at a societal disadvantage because of the economic structure of baseball. So should the umpire decide to make the strike zone smaller when the Twins batted and larger when the Yanks were up? It would certainly do something to level the playing field. But what if the umpire in the next game of the series, decided he empathized with individual Yankee players many of whom have never won a World Series and will get run out of town on a rail if they don’t win one this year. So he does something different. You have chaos, because umpires can’t keep their personal feelings out interpreting the rule book in live action.
The view I give, can result in some decisions that are essentially cold-blooded. Watch a few episodes of Law & Order, and you find yourself understanding judicial rulings on evidence that favor obvious criminals on technicalities. There’s a sense of outrage over it, but also a sense that the judges’ hands are tied. And it’s not his/her place to try and fix it.
That doesn’t mean we throw up our hands and do nothing, and tell innocent victims—be it in civil or criminal court that there’s nothing we can do. It just means that a judge taking the law into their own hands and putting their own personal feelings above it isn’t the answer. We have a legislative branch of government for a reason and that’s to work on fixing those injustices. Drawing on our baseball analogy, we don’t just tell the Twins that there’s nothing we can do. We might push for a salary cap or more equitable sharing of revenue between franchises. We’d work on changing the rules through the proper channels, rather than arbitrarily letting the umpire do it by any means necessary.
In a philosophical sense, justice and mercy are inextricably tied up together. Justice is cold, but necessary. Mercy is compassion itself. It’s the job of the judiciary to handle justice. Legislative bodies—and more importantly people themselves—handle mercy. It’s important to have judges who understand that. And the reality right now is that such judges are far more likely to come from Republican presidents than they are from Democratic ones. As long as the GOP stays the course on this, it’s the best reason there is to vote for their candidates at the national level.