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Obama and the Supreme Court

May 4, 2009 1 comment

“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.”

With that, President Obama laid out his standard for determining the replacement for Justice Souter. As is his wont, Obama of course made his answer intentionally murky (so as to maximize political palatability) adding that “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.” The Constitutional traditions like the sanctity of contracts, protection of individual liberty and commitment to a system of free enterprise?

No, for the POTUS does not respect these values in his very belief that one of the fundamental criteria for picking a judge is “empathy.” Supreme Court justices are supposed to judge according to the Constitution. Surely, we would love if our justices too were noble, virtuous and even empathetic, but this has nothing to do with carrying out their duty of interpreting the Constitution properly and applying it equally. Men are not angels, and justices are mere men.

Nor is it incumbent upon qualified jurists to have “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,” as Mr. Obama argued at a meeting of Planned Parenthood in 2007. In fact, this is fundamentally opposite of what one should look for in a judge. Judges are supposed to be blind to race, gender, ethnicity, etc. If we accept that all men are treated as equal under the law and endowed with natural rights, granted to them by a power even higher than that of the Constitution…dare I say a power even higher than that of Barack Obama, then one should never favor one group or another in jurisprudence. This fallacious conception of justice values personality over merit. It values emotion over reason.

Also calling into question Obama’s judgment is word that he may be explicitly looking to appoint a woman or a Hispanic to the Supreme Court. What the gender or heritage of a candidate for the Supreme Court has to do with being able to interpret the law, I do not know. What should it matter whether a justice is black or white, man or woman, Hispanic or Korean? In this country, at this time in history, we are supposed to be above race and gender. Nominating a justice largely with this criteria in mind is both racist and sexist. Further, it delegitimizes the role of jurisprudence by valuing traits one is born with over skill. Of course these types of affirmative action quotas are nothing new, but they are all equally asinine. When we replace merit with arbitrary standards, we are setting up our society to fail. Imagine if we selected our doctors based upon the neatness of their handwriting.

Underlying all of this is the question of Obama, the Constitutional scholars’ view of the courts. It would seem to me that his beliefs have have nothing to do with interpreting law according to the Constitutional values that he speaks so passionately about, and everything to do with interpreting the law as Mr. Obama sees fit. In other words, he seeks a justice who views the Constitution as a “living document” that “envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of the community,” according to his Audacity of Hope. Again, we see the two-faced nature of these words. Individual freedom matched with the demands of the community. What are these demands exactly?

Having read the Constitution, the only demand that I can see is that we do no harm to our fellow man; that we each have control of our life, liberty and property and that no man or majority can take these from us. What if the community demands that people who own their houses must pay down the mortgages of those who are in foreclosure? What if the community demands that to keep workers in their jobs at auto plants, all citizens must buy green American cars? What if the community demands that the wealthy pay a 90% tax? Or that there be public floggings of anyone who has ever worked for an investment bank?

This of course is the problem with the lax, “living document” interpretation of the Constitution. It allows for a slippery slope that ultimately corrupts the values the law is supposed to preserve. By allowing activist justices to interpret based upon the will of the people at a given time, this can lead to total tyranny or total anarchy, based upon whatever 50% + 1 of the people want. The results of governing without principle, and rather according to the will of the majority will end disastrously. The whole point of the Constitution is to protect the smallest and most important minority, the individual, regardless of that individual’s race, color or creed. Which is why I find it so befuddling that Mr. Obama, a progressive who believes that we all have equal rights should care about the race or sex of his Supreme Court justices. Even more befuddling is his belief that judges understand “what it’s like to be poor, or African-American, or gay or disabled or old,” but not “rich, or white, or straight or able or young.” If the law is supposed to apply equally to all, then shouldn’t the judge understand the concerns of these folks too?

In reality, these factors should not concern judges one iota. This is the beauty of our law. The law treated properly is blind to personal traits. Under the purview of the law, we are all treated as equals. To care about any other arbritrary qualification is simply unjust.