On Empathy, Sotomayor, & Consequences

If there is a problem with President Obama’s choice of Judge Sonia Sotomayor as his nominee to replace Justice Souter on the Supreme Court, it lay not in Sotomayor herself, but in the President’s criteria leading to her selection. In a recent interview held before announcing his nominee Mr. Obama stated he didn’t just want a jurist plucked from the Ivory Tower. While allowing that intellectual firepower was important he placed special emphasis on finding someone who also had, “a little bit of a common touch” along with, “a practical sense of how the world works.” To boil it down to one word, it was ‘empathy’ the President was most looking for in a potential nominee.

Empathy, the act of intellectually identifying with the experiences of another, is almost always a laudable human trait- almost, but not always. The ability to a walk a mile in another’s shoes bodes one well when cementing friendships and reinforcing alliances but it is always an abomination when applied to the interpretation of law. In fact, the application of empathy can’t help but to serve the corruption of law.

The statues of Lady Justice adorning courtrooms throughout the country most often depict a stern, but blindfolded arbiter. In her raised hand the scales are set evenly in anticipation of the coming weight of facts and evidence. In a lowered hand she brandishes the sword that will eventually cut one way or the other. The essential idea here is that the weight of the arguments made, not the adjudicators vision of the litigants, should be the only consideration before judgment is rendered.

When President Obama says he favors judges that not only stick to the letter of the law but also, “get a sense of how the law might work or not work in practical day-to-day living,” he is attempting to conjoin two principles that are mutually exclusive. It is not possible to both stick to and disregard the letter of the same law. Therefore, the President is explicitly stating that he believes there are times a Justice is morally bound to toss settled law to the wind in order to bring immediate aid and comfort to an individual litigant. This may feel good in law practice but it ain’t the practice of good law.

It is the purpose of legislators, not the bench, to facilitate the urgent redress of individual constituents. Politicians are elected and have to stand for reelection before those same constituents and that is why they are the proper constitutional ‘day to day’ representatives of the people before the powers that be.

By the same token, elections should have consequences at every level of governance. One of the major duties any President is called upon to fulfill is the replacing of Supreme Court Justices that retire or pass away during their term of office. While I disagree with Mr. Obama’s philosophy of jurisprudence the time for that argument has passed.

By winning the last presidential election he and his party won the right to shape the court as they see fit. The constitution charges Congress with the duty to advise and consent but given that Judge Sotomayor has been a federal jurist for eighteen years it’s reasonable to assume she has the credentials for the job. Unless she is revealed to be certifiably insane the President has the right to expect she’ll be seated in a timely manner.

It is important for those who lose elections to refrain from efforts to defang the proper constitutional powers of the offices they’ve failed to win. The pendulum always swings back and when in power the former loyal opposition will not want to be restrained while trying to make their mark on the perpetual motion of governance. If winning elections doesn’t give the victors the right to govern from the point of view that animated them to run in the first place then elections soon become meaningless.

It is the proper role of those who disagree with the nomination of Sonia Sotomayor for the Supreme Court to double up their will to win elections in the future. If participating in elections at times doesn’t seem like enough ammunition for change, or the calendar of voting leaves you impatient for immediate change- it might do some good to consider that your current right to participate in the credible election of your lawmakers is more power than 99.9% of the people who have ever lived and died on this planet have enjoyed.

Stop pouting. Start persuading.

What About the Fair Tax?

Since announcing my intention to explore a Libertarian run for the Georgia Senate seat up for grabs in 2010 I have been asked one question more than others. That question is: Where do you stand on the Fair Tax?

To the frustration of many I have waved off the question, citing a genuine ambivalence on the topic. The belief that we are overtaxed is the motivating force behind my decision to consider trading in radio headphones for the life of a politician. The rallying cry for my campaign would be Less Tax, More Freedom because I believe there is an inverse relationship between the two. I believe the more tax an individual is forced to pay, the less free that individual is. Conversely, the less tax a person pays, the more freedom that person enjoys.

This is the main argument I look forward to taking to the voters of the state. It is an argument that posits low taxation as something beyond a way to keep more money in our own hands. I intend to champion a policy of low taxation as the best guarantor of maximum human freedom.

Everyone- Left, Right, & Center claim a desire to be free. My campaign will challenge voters to examine what it means to be free and whether they are willing to assume more personal and community responsibility in order to regain and cement the freedoms they claim to cherish. This should prove to be a Herculean task given the current state of affairs in this country.

President Obama and his party’s collectivist notions have been so successful at the ballot box over the last few years they have convinced many top Republicans it is time for a change of course. When the elephants consider the jettisoning of Reaganism in favor of a more collectivist approach signs abound that supply-side Libertarians are on life-support. I will have my work cut out for me.

So where do I stand on the Fair Tax?

I do not have a problem with the Fair Tax. I don’t doubt its efficacy or legitimacy. And I look forward to a time when something so beneficial can be enacted into law. But it’s my opinion that the current political landscape is not conducive to Fair Tax success in the short term. Getting such sweeping tax legislation passed in this atmosphere is about as likely as coaxing an oak tree to grow in the desert. There is no soil to be tilled. Never mind the seed.

I applaud the Fair Tax movement but it is not my cause. I have no competing cause but rather, believe we first need elected voices that trumpet true liberty. I wish it were possible to immediately turn the tax code on its head. But it seems to me we’ll first need a movement of likeminded politicians to create the soil from which monumental change can grow.

My hope is that once enough voters come to see the link between taxation and freedom there will emerge a groundswell of support for major tax reform. Until then I will fight for the lowest taxes possible in order to secure the most freedom possible.

I believe that a Flat Tax, while far from perfect, is a solid first step. If we can convince the public to enact a Flat Tax the next step should be to throw all our effort behind the repealing of the sixteenth amendment. If that onerous amendment is successfully repealed we will know the political landscape is fertile for something as groundbreaking as the Fair Tax.

I know many will be disappointed with my go-slow approach on this topic. But don’t confuse an issue of timing with a true breach on the issue. I believe undue taxation represents the modern equivalent of the slaveholder’s whip. I am a soldier in the fight. But I believe we must first labor to sew in the fields if we’re ever one day to reap in the bounty.

Less Tax, More Freedom is my message.