Empathy On The Bench

With Dear Reader nominating a new Supreme Court justice, it is time to revisit his comment about the types of justices he would like to see on the Supreme Court.

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.


We need somebody who’s got the heart, 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. And that’s the criteria by which I’m going to be selecting my judges.

The law is the law.  It shouldn’t matter how a person’s life will be affected by the legal decisions.  A judge’s job is determining whether or not a law has been broken.  A justice’s job is determining whether or not things are Constitutional.  Laws can be over-turned if they are unjust, not if they are unfair.  These are not emotional decisions.  They should be based solidly in facts.

Let’s say I was saddled with the responsibility of determining the innocence or guilt in a recent local case.  Two teenagers attempted to rob a local pharmacy.  One had a gun and the other was attempting to put on a mask.  The pharmacist, a conceal carry permit holder, shot the one putting on the mask in the head.  He then chased the one with the gun out of the business firing two shots that missed.  When he came back inside, he shot the mask wearer in the abdomen 5 times while he lay unconscious on the floor.

Now, here’s how I feel about case.  The shooter is a disabled veteran.  He is a law abiding family man.  I call him law abiding because in the state of Oklahoma, you have to pass an extensive background check to obtain your conceal carry permit.  He was going about his normal course of business when he was clearly threatened with deadly force by a couple of hoodlums.  Yes, hoodlums.  I don’t really care how often the mother of the deceased goes on about what a good boy he was.  Good boys don’t rob pharmacies.  He’s a bad guy and a drain on the system as a whole.  Had the pharmacist not acted as he did, our tax dollars would go to support this “good boy” in prison.  We’d furnish his meals and a classy orange jumpsuit while he learned how to really cause harm when he got out.  The other boy is a hoodlum too, even though his mother claims he is a victim.  If a lack of a solid male role model is really to blame for his behavior, mama needs to be looking in the mirror.  He’s a hoodlum.

Justifiable homicide.  The crux of the case are those additional 5 shots fired into the goblin’s abdomen.  If I were to decide this case with empathy, the pharmacist would walk.  His adrenaline was high.  It’s not like he planned to do harm to anyone when he left his house that morning, unlike the hoodlum.  Yeah, he shouldn’t have fired those additional shots, but I can understand the fear he must have felt at the time.  I’ve no reason to believe that he is a danger to anyone else.  Besides, he can’t make a living and care for his family from jail, right?

Oh but there’s that nasty law.  The Oklahoma Self Defense act allows you to employ deadly force against immediate threat.  Once the threat stops being a threat, you also lose your protection under the law to employ deadly force.  If the hoodlum on the floor was really unconscious, those last five shots are not protected as an act of self defense.  It’s murder, clear as day.

Now I’m not pretending to try this case out here on the internet.  There is still much we don’t know.  If the kid was not unconscious, he may have moved in such a way as to convince the pharmacist that he was still an active threat.  Maybe he was going for a gun that he may have had hidden on his person.  If he was reaching into a pocket, it would be completely reasonable for the pharmacist to assume such a thing.

We don’t yet have all the facts, but I wanted to use this case to prove a point.  Many of us on the right will criticize empathy from the bench.  This case is an interesting example to use because many of us on the right feel like the pharmacist is the good guy.  We want him to beat this charge.  One more dead goblin, give him a medal.  But that may not be right under the law, and a judge’s job is determining whether or not a law has been broken. Those on the left want to see justice done for the disadvantaged hoodlum.

Justice is not served by what feels right.  As much as I’d like to consider him a hero, if he fired 5 shots into the abdomen of an unconscious goblin, he’s a murderer in the eyes of the law.  Those are just the facts.  I would like to see our Supreme Court Justices possess empathy as well-rounded people.  I do not want to see them employing it from the bench even if that means they make decisions that don’t feel good to me.

5 thoughts on “Empathy On The Bench”

  1. Seems common sense runs in the family. While I, like most, would like to see this guy walk, there is a chance he may not.

    That being said, without actually being at the store, when it happened, no one other than Mr Ersland himself can honestly say what happened that day. Was the kid unconscious? Or was he simply stunned and realized he wasn’t dead and made a move that made Mr Ersland think he was still a threat. After all, he did walk by the kid long before planting another 5 slugs in him.

    The camera doesn’t show it all. If the prosecutor tries to use the tape to convict Me Ersland, than the defense should be able to use it to prove reasonable doubt. You don’t see what made Me Ersland walk back over and take those last shots.

  2. Beautiful posting! It really made me think. Your most poignant statement was the fact that this guy didn’t wake up that morning planning to kill somebody and ruin his life forever. The two robbers, however, DID. Therefore, I believe they are the one’s who put the ball in motion, and they alone are responsible for the consequences. I understand the law requires the DA to arrest the store clerk, but this is where the beauty of our jury system comes to play its role. If I were on the jury, I would “empathize” and vote this man not guilty and let him walk. Empathy is for juries, not justices/judges. I’d rather see a dozen O. J. Simpsons go free than even one decent man like this go to prison for a horrible situation he did nothing to bring upon himself. But again, that is for the JURY to decide, not the judges. Mr. Obama is wrong. – Arnie

  3. Very nice. Refreshing common sense.

    Unfortunately, Dear Reader would look at the exact same circumstances and with a big question mark hovering over his head wonder … “Which decision gives me the best political advantage? I need a judge that agrees with me politically!”

    dxturner’s last blog post..The only thing we have to fear …

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