Empathy And Colorblindness

In July 2007 candidate Obama clearly announced what his standard would be for nominating judges:

We 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.

Now comes prolific University of Chicago law professor Richard Epstein with a powerful critique of the empathy criterion in judicial selection and a defense of the traditional notion that justice should be blind.

It might be smart politics for Obama to play to his natural constituencies, but intellectually there is, I think, no worse way to go about the selection process. Empathy matters in running business, charities and churches. But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice.

Iustitia is not blind to the general principles of human nature. Rather her conception of blindness follows Aristotle’s articulation of corrective justice in his Nicomachean ethics. In looking at a dispute between an injurer and an injured party, or between a creditor and debtor, the judge ignores personal features of the litigant that bear no relationship to the merits of the case.

“Lest one think that this form of blindness has no constitutional resonance,” Epstein continues,

remember that the single most powerful image used to combat segregation in the United States was the first Justice John Marshall Harlan’s plea for “a color-bind” constitution in his dissent to the Court’s notorious 1896 decision in Plessy v. Ferguson, which in one case legitimated bans against interracial marriage and segregated schools and public transportation systems.

I have argued here on a number of occasions that one of the oddest, saddest things about contemporary liberalism is the degree to which it stands on the shoulders, and repeats the arguments, of dead racists. And the best example, as I noted here, is that

anyone who defends racial preferences must reject Justice John Marshall Harlan’s stirring comment in Plessy that “our Constitution is colorblind” and agree with the majority’s holding in that case the 14th Amendment does not require colorblindness.

That’s because, as I noted here, that

the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

Modern liberals, alas, do more than reject Justice John Marshall Harlan’s invocation of colorblindness when they echo the Plessy majority’s defense of discrimination. They also align themselves (malign themselves might be more accurate) with the framers of the 14th Amendment who successfully prevented Charles Sumner, Thaddeus Stevens and other former abolitionists from including a clear colorblind standard.

“It is one of the many ironies in the strange career of racial equality,” as I argued here, that

that in order to defend racial preferences liberals today rely on purposefully ambiguous language resulting from the desire of the framers of the 14th Amendment to preserve segregation and states rights, while the critics of racial preferences, who are usually viewed as conservatives, echo the radicals who wanted to proscribe all racial distinctions. Today … these “conservatives” are much more likely than liberals to honor Justice John Marshall Harlan’s eloquent assertion in his Plessy v. Ferguson dissent that “our Constitution is colorblind.”

The ultimate irony, of course, will be when our first black president nominates a Supreme Court justice who agrees with the arguments of those who kept an unequivocal colorblind standard out of the 14th Amendment and with the majority in Plessy who argued that our Constitution is not colorblind.