The disinterested Court we seek

Disinterest is not a lack of interest or of curiosity — disinterest is impartiality. More precisely, a disinterested party is one acting without regard to personal advantage or benefit, without any personal feeling or investment in the outcome of a dispute. We read about “disinterested justice” in sources as different from each other as Schopenhauer and Ruth Bader Ginsburg. Felix Frankfurter wrote of the “capacity of disinterested judgment” and its necessity for a judge. Somehow, this seems to have escaped the notice of Jennifer Rubin, who holds a law degree and had a Hollywood legal practice for 20 years. No business like show business, I suppose.

Rubin and those who see the world in the same way reject the notion of disinterested judges, disinterested law, and disinterested justice. Partly that is old-fashioned ochlocracy, partly that is the influence of academics ensorcelled by “critical legal theory.” In place of disinterestedness, the Left would have interestedness and interest-group politics — racial, sexual, economic, partisan. In place of a justice of legal procedure and the ideal, imperfectly realized, of universal equality under the law, the Left would have a jurisprudence of politically mandated outcomes. This is, of course, finally incompatible with the rule of law, under which the law itself must prevail irrespective of extralegal concerns.

Political account-keeping is precisely what President Barack Obama meant when he spoke about the role of “empathy” in his selection of judges. In a famous 2007 speech to the butchers’ guild, Barack Obama called for installing judges with “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.” Those are precisely the things the law — “no respecter of persons” — is expected to take no note of. If you are driving 67 MPH in a 55-MPH zone, it does not matter as a legal question whether you are black, poor, a single mother, elderly, or disabled. President Obama rejected that disinterestedness and instead chose justices such as Sonia Sotomayor, who conceptualized her role in explicitly ethnic terms — “a wise Latina,” who has conducted her career on the Supreme Court exactly as one would have expected. We need not question President Obama’s sincerity to question his wisdom.

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