With justices as old and esteemed as the very architecture of the building, the Supreme Court… With justices as old and esteemed as the very architecture of the building, the Supreme Court will once again enter the public light with President Obama’s nomination of Sonia Sotomayor.

In picking Sotomayor, Obama tried fulfilling a pledge to appoint justices for their ability to understand the average schlep, to demonstrate “empathy.” Sotomayor appears to have that in spades, but there are questions as to her ability to interpret law.

It is not advisable to have justices who are wanton and cruel in application of the law — justices who might write their opinions with phrases such as, “They don’t call me ‘Hang ‘em high Roberts’ for nothing.” But it’s also not advisable to have justices who ignore their calling: to interpret the Constitution, and to uphold it.

The problem with justices acting out of empathy instead of out of a sense of the Constitution is that while the latter is specific, the former is vague. The Constitution has been thoroughly defined, and there are

experts on its interpretation. Different people define empathy in different ways, arguably all of them equally qualified. Justices are not supposed to be experts on empathy, clergymen are.

When a justice rules on the Constitution based on empathy instead of what it actually says, the justice creates a problem by fundamentally changing that founding document. The opinion of a justice in the majority becomes a fundamental part of how other readers and jurists interpret the Constitution. It is precedent. It will be cited in the future. A justice’s opinion as to what is compassionate has suddenly become law.

The end effect is that the Constitution has become incredibly vague, defined not only by what it says, or by what a justice believes it says, but by what a justice believes it should say. Granted, interpretation calls for certain flexibility in the Constitution, but this flexibility should not be to the extent that the Constitution changes on a weekly basis. If the law is randomized, businesses, governments and individual citizens dealing with both of them do not know how to act in a legal manner. It is unclear what the law even is.

There is also the sticky question of accountability. Supreme Court justices sit on the bench for as long a term as they desire. This insulates the Court from politics, a benefit in most cases — justices can write opinions that are politically unpopular. But justices who distort the Constitution to suit their personal sense of empathy do so without being held accountable to those who hold a different view of that hazy concept.

In 2005, in Kelo v. City of New London, the Court handed down a controversial opinion that greatly increases the power of eminent domain. Theoretically, if a community government believes it can increase tax revenue by seizing and redistributing property, it can do so. I disagree with John Paul Stevens and his sympathy for municipalities over landowners. However, the only thing I can do is pressure local, state and federal governments not to use that power. I cannot remove the man who gave that power to them. Worse, precedent stays around for some time. Reversing the ruling will prove just as tricky.

Empathy does have a place in government, but that place is not the Supreme Court. That place is in Congress or the White House. These branches change the law relatively easily, or interpret the enforcement of that law differently from administration to administration. In these places, the American people can also make their views of compassion known, and remove those representatives who disagree. To take one example, the Bush administration set up Guantanamo Bay out of one view of compassion: To prevent terrorist attacks, we needed a place to detain people without charge. The prevention of attacks was a compassionate goal. However, millions believed that the government could have reached this compassionate goal in a better way, which led the Obama administration to close the camp.

Now, let’s imagine that the Supreme Court, agreeing with the Bush view of compassion and empathizing with a very real fear of terrorism, rules that the Obama administration’s pledge to close the camp is unconstitutional, essentially forcing the camp to remain open. Suddenly, millions of Americans have been ignored, and those millions cannot do anything, short of constitutional amendment, to make their wishes known. A reduction to absurdity? Certainly. But only by absurdly appointing justices out of their sense of empathy instead of their expertise in law do such absurd rulings become possible.

E-mail Mark at [email protected].