A Justice for all

It will probably come as no surprise that I like poetry. I mean, really like it, often love it, especially poetry written back when it still rhymed, or had an irresistible rhythm, and definitely before the modern fad of breaking lines up into stairsteps on the page got to be all the rage.
I mean, who can follow

a thought when it

jumps around

like this?

But prose can also be poetic, so to speak, particularly when it is, as the dictionary suggests, “an imaginative or sensitively emotional style of expression.”

Just consider our Declaration of Independence:

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Maybe the Founders just naturally wrote like that, or perhaps they deliberately waxed poetic out of emotion for the history they were making. Either way, it worked.

Soon after that, they produced our Constitution, another truly remarkable document, that has served its purpose well ever since.

There have been amendments from time to time, most notably the first ten, which comprised the Bill of Rights, but really not so many when you come to think of it. Fewer than 30, all told, suggesting that the Founders got it pretty much right in the first place.

Now, the tricky thing about our Constitution is figuring out how to comply with it more than two centuries later, and that is the debate at the heart of choosing a Supreme Court justice, as President Obama is about to do for the first time.

There are essentially two schools of thought here: whether every case before the Court must be decided strictly according to what is written in the Constitution, or whether that doesn’t make sense because so much has changed that circumstances impossible for the Founders to have foreseen demand interpretation for our times.

Barack Obama has told us he wants to appoint a justice who is not someone with “just ivory tower learning. I want somebody who has the intellectual firepower but also a little bit of a common touch and a practical sense of how the world works.”

And he added that one of the qualities he's looking for in a new Supreme Court justice is “empathy.”

Now, everyone take a deep breath here and understand that “empathy” is very different from “sympathy,” a distinction that seems to have eluded some of his determined opponents.

The way I understand it, “empathy” means you understand where someone is coming from; “sympathy” means you want to go where he’s going – you want what he wants. Big difference.

Obama explained why he believes empathy is a desirable quality in a justice:

You have to be able to stand in somebody else's shoes and see through their eyes and get an idea of how the law might work or might not work for them.

He offered, as an example, retired Justice Sandra Day O’Connor:

You always had a sense that she was taking the law and seeing what are the practical applications of the law....She wasn't a grand theoretician but she ended up having enormous influence on the law as a whole.

Our Founders, wise as they were, would never have expected America, this amazing country, to forever remain an 18th century society. I believe they intended to give us a body of law that would serve to guide us for centuries ahead, through growth and changes they might have guessed at and those they could not.

Michele Norris, an NPR reporter, speaking in a Sunday round table on the matter, said it better than anyone. She suggested that whereas conservatives see the law as “set in stone” in demanding “strict construction” of the Constitution, Obama

. . . sees the law as something that is dynamic, that changes over time . . . almost as if [the law is] a river, something that flows through people’s lives, from the courtroom into the classroom, into the boardroom, through field and factory, past the kitchen table; and that the Constitution, this magnificent document, was written 200 years ago . . . and that you need to consider how the terrain of this country has changed. Because that will determine the ebb and the flow of this sort of dynamic force.

Sheer poetry.