Today’s newspaper explodes the boundary between past and present on issues of pity and justice, in the column by Charles Krauthammer (“Sotomayer: Rebut, then Confirm” Washington Post 5/29/09). Krauthammer skews the historical reality of right and left wing notions of justice, by claiming that liberals promote “a jurisprudence of empathy that hinges on which litigant is less ‘advantaged’.” May I remind him that the terms left and right originated in the French National Assembly of 1789-92, and that it was the left wing which pushed for a form of justice that would denounce leniency based on commiseration or fellow feeling. Indeed the notion of “false pity” was coined by the notorious “terrorist” Maximilien Robespierre and his associate Saint-Just, who were surely never guilty of a “jurisprudence of empathy”!
Today’s debates over the nomination of Judge Sonia Sotomayor to the Supreme Court are a “teaching moment.” But Krauthammer has his lessons wrong. Instead of pronouncing facile oppositions between “liberal” versus “conservative” jurisprudence, one should focus on the legality and principled actions of all members in our judicial system. During the 1790s, it was monarchists and moderates, not democratically-minded patriots, who were most guilty of “false pity,” as the debates over the execution of King Louis XVI reveal and with the results we all know. Let history remind us to tread lightly on the relative value of empathy in justice.