Day By Day© by Chris Muir.

Tuesday, July 05, 2005

Identity jurisprudence

Heather Mac Donald writes a spectacularly good column challenging all the assumptions implicit in Dahlia Lithwick's NY Times Op-Ed about Sandra Day O'Connor's failure as a woman jurist -- the failure arising because O'Connor didn't routinely jettison the Constitution and rule in favor of women simply because they were women. The following is just a small part of the article, but I urge you to read the whole thing, and then tape it to your bedside table to read every morning as the Left tries to manipulate the process of finding O'Connor's replacement:

Here's Lithwick's 'logic': 1. As a legal pioneer, O'Connor should have empathy for female victims of violence. 2. Having empathy, she must rule in their favor and uphold the act. In other words, it is the sympathetic identity between a judge and an alleged victim that compels constitutional decisions, not anything having to do with the Constitution itself. This argument would be scary enough in its own right, reducing the law as it does to a question of tribal loyalty. But it contains a corollary that is even more disturbing. By Lithwick's reasoning, if you rule against a plaintiff, it means that you don't have empathy for him. 'How could [O'Connor] show so little empathy to female victims of violence?' Lithwick asks. But O'Connor undoubtedly does have 'empathy' for female victims of violence. Like any good judge, however, she is able to separate her emotions from her logical thought. Constitutional analysis does not ask: Is this a sympathetic victim? It instead asks: Is there a constitutional basis for this governmental assertion of power? One may have empathy for a plaintiff, and still be compelled to rule against him. Feminist jurisprudence, however, explicitly rejects the realm of reason. Legal analysis, feminist law professors teach, is just a smokescreen. The law really is a power grab by white heterosexual males to silence the 'voices' of women and minorities. Or, as Lithwick writes in the New York Times: Law is a 'man's game.' This dismissal of legal thought mocks our constitutional framework. If emotion and group identity are the main drivers in every branch of government, having a constitution is pointless, since it will never constrain political will. The Founders believed otherwise, and drafted a Constitution in the conviction that it would set enforceable limits on government power.