What Kind of Judges Do We Want?
Throughout the evening, John Payton reminded us that these are not merely theoretical points. He read a chilling sentence from Herbert Wechsler’s influential essay “Toward Neutral Principles.” Wechsler is making the point that laws mandating the separation of the races burden both races equally: “In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess.”
One might wonder whether Houston would equate the lunchtime inconvenience suffered by his colleague with the humiliations he had to endure every day of his life. One might be amazed, as Payton was, by Wechsler’s blindness to what he is saying. He was a great legal mind, but something was missing. You can call it empathy or (as some in the audience suggested ) you can call it understanding or imagination. I called it hearkening to the spirit rather than the letter. But whatever you call it, everyone present that evening agreed that it was what we wanted.