LOGIC OR EMPATHY?

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Artificial Intelligence is one of science-fiction writers’ favorite foils.  A machine or gadget of some form, with infinite knowledge and ability for logic, provides the hero with all the answers, like a Deus Ex Machina in a Roman drama.

But would we want such a perfect AI to be a Supreme Court Justice? Not if we follow Justice Holmes’s reasoning.  According to him, law is not only logic, though certainly the coherence and predictability that logic provides are desired.  It also reflects the history of nations, the “felt necessities” of the times in which we live – necessities beyond a machine’s logic.

President Obama rejected logic altogether and called for Justices with empathy.  But like all politicians, from both sides, he meant empathy with the same people he empathizes with.  Justice Alito has endless empathy – for law enforcement and prosecutors.  He gives the benefit of the doubt whenever possible to the people he sees risking their lives in difficult conditions day in and day out.  But Alito would not have passed Obama’s test, so empathy is no better than pure logic, since it changes with every occupant in the White House.

From this writer’s perspective, the more important aspect of the Supreme Court is that it is a jurisprudential body.  The law expressed in its opinions is binding on all courts for all times – or at least until the Supreme Court itself reverses an old precedent.  So a justice’s most critical trait is the ability to write clear opinions, that future judges, lawyers, and litigants can apply with confidence.  And this does not depend on political-style labels like “conservative” or “liberal” or their euphemisms.  For that matter, Justices Roberts (Bush nominee) and Kagan (Obama nominee) are the most consistently brilliant in that regard.  And it is also a character that transcends both empathy and cold logic.

I will not step into a political minefield and advance any name.  Nor do I have the army of lawyers that presidents employ to parse through every word would-be candidates have written.  But the President-Elect becomes the President today and he will nominate someone for Supreme Court Justice.  Politicians on both sides will react predictably, with a “who wins” attitude, if not with personal attacks.  I encourage those who can to read instead what the candidate actually wrote.