President Obama's articulated criteria for his nominee to the U.S. Supreme Court is: "We need somebody who's got the heart to recognize -- 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."What is the role of a U.S. Supreme Court justice? A reasonable start for an answer is the recognition that our Constitution represents the rules of the game. A Supreme Court justice has one job and one job only namely; he is a referee. There is nothing complicated about this. A referee's job, whether he is a football referee or a Supreme Court justice, is to know the rules of the game and make sure that they are evenly applied without bias. Do we want referees to allow empathy to influence their decisions? Let's look at it using this year's Super Bowl as an example.
The Pittsburgh Steelers have won six Super Bowl titles, seven AFC championships and hosted 10 conference games. No other AFC or NFC team can match this record. By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals. Or, would you support a referee who refused to make offensive pass interference calls because he thought it was a silly rule? You'd probably remind him that the league makes the rules, not referees.
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