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FIRST-PERSON: Penumbras and emanations

ALEXANDRIA, La. (BP)–The American Bar Association first published its “Guidelines for the Evaluation of Judicial Performance” in 1985. In 2005 the ABA issued an update version titled “The Black Letter Guidelines for the Evaluation of Judicial Performance.” Both documents articulate the qualities an individual should possess if he or she is to be considered a competent judge.

Among the traits the ABA believes make for an effective jurist are legal knowledge, integrity, freedom from bias, effective communication, courtroom etiquette, management skills, punctuality, service to the community and the profession, and the ability to work well with colleagues.

Since justice is supposed to be blind, the ABA guide stresses the need for judges to treat people with equity. Specifically mentioned are the following:

— “Absence of favor or disfavor toward anyone, including but not limited to favor or disfavor based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.”

— “Basing decisions on the law and the facts without regard to the identity of the parties or counsel, and with an open mind in considering all issues.”

The “Black Letter Guidelines” make no mention of an effective jurist needing to possess any specific emotive qualities. And while the ABA’s guidelines do not mention traits like empathy, caring or understanding, President Obama has made it clear these qualities will be paramount in his selection of jurists for the federal bench.

“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 select my judges,” is how then-Sen. Obama answered a question in July 2007 concerning his criteria for judicial appointments.

President Obama recently reiterated the qualities he will look for in a judge, saying “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Sonia Sotomayor, Obama’s nominee to fill the seat of retiring Justice David Souter, recently came under fire for a statement made in a 2001 speech given at the University of California Berkeley. Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.”

Obama defended his nominee against charges of racism.

“But if you look in the entire sweep of the essay that she wrote,” Obama said, “what’s clear is that she was simply saying that her life experiences will give her information about the struggles and hardships that people are going through.”

If the ABA doesn’t bother to mention the emotive qualities of empathy and understanding in its “Black Letter Guidelines,” why does President Obama deem them as so sacrosanct? Because he wants Supreme Court justices able to discover “penumbras formed by emanations” in the U.S. Constitution in order to impose a liberal social agenda on Americans.

In 1965, the Supreme Court “found” a constitutional right to privacy in the case of Griswold v. Connecticut. The 7-2 decision struck down a Connecticut law that prohibited the sale of contraceptives.

Writing the majority opinion, Justice William O. Douglas argued that the right of privacy exists in the Constitution within “a penumbra” (a partial shadow where light from a given source is not wholly excluded, as in an eclipse) “that is an emanation” (something which springs, flows or oozes from another source) from the Bill of Rights.

Justice Douglas and his colleagues wanted the right to privacy to exist. Thus, they said the Constitution contains this right, even though it doesn’t specify it. The enlightened justices, however, could discern it as a partial shadow oozing from the Bill of Rights.

In his dissent on Griswold, Justice Hugo Black wrote, “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

Douglas’s “right to privacy” argument based on a penumbra of an emanation (only a lawyer could concoct such a convoluted and esoteric statement) would provide the impetus for the invention of the right to abortion on demand in the landmark case of Roe v. Wade in 1973.

In their dissent in Roe, Justices Byron R. White and William H. Rehnquist argued, “The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

What motivated the Court to rule as it did in Griswold and Roe? Historical scrutiny reveals that in both cases it was empathy and understanding. The majority of justices “empathized” with the situations before the court. They “understood” the plight of others in similar situations. In both instances they “felt” the law was wrong and found a way — a penumbra of an emanation — to strike it down.

Feelings of empathy and understanding belong in love songs and romance novels, not in a court of law and certainly not in the Supreme Court.

All judicial emotion does is provide an impetus for discovering “penumbras formed by emanations” in order to justify implementing a social agenda via the courts, which is why the ABA does not consider “empathy” and “understanding” among the qualities that make for an effective jurist. But it is exactly why President Obama does.
Kelly Boggs is a weekly columnist for Baptist Press and editor of the Baptist Message (www.baptistmessage.com), newsjournal of the Louisiana Baptist Convention.

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