Obama opined that deciding the “truly difficult” cases requires resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” In short, “the critical ingredient is supplied by what is in the judge’s heart.” No clearer prescription for lawless judicial activism is possible.
If by “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works” Obama means the active truth of a graciously loving God, sure. But the truth does not move for fake conceptions of love, nor does love mould itself to what the world mistakes for it. Love is what God is, not what we call “love” and idolatrously believe God to be. So yes, the “critical ingredient is supplied” by what is in the Judge’s heart: real justice and peace. None other, for the corrupted human heart is deceitful above all things.
I also think Obama and others call cases “difficult” with astonishing regularity. There are emotionally complicated cases where such complications have little to no bearing on the judicial decision. How emotional an “abortion” is for the mother individually has nothing to do with whether “abortion” is good, still less with whether a judge is to uphold or strike down a law on the matter. Anyway, Whelan continues:
Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: “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 criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.
Surprisingly, I agree with some of what Obama explicitly says here, though I disagree entirely with making this the criterion by which to select judges. If Whelan is suggesting here that judges should be dispassionate in person as well as in their decisions as a whole I must voice my dissent. Yes, just judging requires the ability and commitment to ultimately rest on objective truth, but that does not preclude compassion. A judge should indeed not be a staid, cruel vindicator or even just a grim person who does not know mercy. In the oracle that King Lemuel’s mother taught him it says:
Open your mouth for the mute,
for the rights of all who are destitute.
Open your mouth, judge righteously,
defend the rights of the poor and needy. (Pro. 31.8–9)
This is because the people at the top are prone to taking away the voice of those at the bottom. Thus God charges the Israelites to keep truth and righteousness in their hearts:
You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor. (Lev. 19.15)
This righteousness may be served by compassionate empathy, but it is not manipulated by a hollow-shelled empathy that abandons what is pure and just. God never puts His love on hold when He judges nations and punishes wrongdoing: in the same way, an unaccommodating judgement is not a sign of unfeeling adherence to barren law but a recognition of a transcendent truth that doesn’t change with the situations or the times. There’s a major difference between knowing extenuating circumstances and excusing an injustice done.
Empathy, yes, but love of truth and righteousness and real wisdom is just as essential. There is no “balance” to be struck. Empathy and objective truth are entirely compatible.