Judging Laws That Might “Not Work”

In the midst of President Obama’s selection of Sonia Sotomayor as his nominee to the Supreme Court, one should keep in mind Obama’s belief in selection of a jurist who displays “empathy.” One of the more interesting quotes from Obama in the last few weeks leading up to selecting Sotomayor was this:

I said earlier that I thought empathy was an important quality, and I continue to believe that. You have to have not only the intellect to be able to effectively apply the law to cases before you, but you have to be able to stand in somebody else’s shoes and see through their eyes and get a sense of how the law might work or not work in practical day-to-day living.

So, if a judge gets a sense that a law might “not work in practical day-to-day living,” does that allow them to rule against it? Isn’t a judge supposed to apply the law as it is written and not decide to overrule it just because they disagree with it? The now infamous “empathy” comment along with this latest comment shed quite a bit of light on what Obama, a former Constitutional law professor, sees as the proper role of Supreme Court justices. Unfortunately, despite his supposed expertise in the subject, he’s wrong.

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