Which of those descriptions in the title would best describe your understanding of a Supreme Court Justice?
If you wonder what President Obama wants in a Supreme Court Justice, take a look at this excerpt from his speech explaining why he couldn’t vote for Justice Roberts.
He’s describing that 95% of the cases before the court will find all justices coming to the same conclusions. However, it is the 5% that concerned Obama and determined his inability to vote for Roberts. Here’s what he said:
In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country, or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, or whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
“Empathy” and “heart” do not equal “rule of law”.
Thomas Sowell distills the essence of the argument against Obama’s assertion:
Justice Oliver Wendell Holmes said that he “loathed” many of the people in whose favor he voted on the Supreme Court. Obviously, he had feelings. But he also had the good sense and integrity to rule on the basis of the law, not his feelings.
Laws are made for the benefit of the citizens, not for the self-indulgences of judges. Making excuses for such self-indulgences and calling them “inevitable” is part of the cleverness that has eroded the rule of law and undermined respect for the law.
It would be considered a disgrace if an umpire in a baseball game let his “empathy” determine whether a pitch was called a ball or strike. Surely we should accept nothing less from a judge.
And that is reason enough why all of his nominees should be subjected to rigorous examination that requires them to explain their judicial philosophies in light of the president’s stated desires.
From the White House Blog in an entry written by Norm Eisen, special counsel to the president for ethics and government reform in “the spirit of transparancy”:
… [T]he President’s March 20, 2009 Memorandum on Ensuring Responsible Spending of Recovery Act Funds. Section 3 of the Memorandum required all oral communications between federally registered lobbyists and government officials concerning Recovery Act policy to be disclosed on the Internet; barred registered lobbyists from having oral communications with government officials about specific Recovery Act projects or applications and instead required those communications to be in writing; and also required those written communications to be posted on the Internet.
However, a couple of changes have been made, among them:
First, we will expand the restriction on oral communications to cover all persons, not just federally registered lobbyists. For the first time, we will reach contacts not only by registered lobbyists but also by unregistered ones, as well as anyone else exerting influence on the process. We concluded this was necessary under the unique circumstances of the stimulus program.
So thinking this through, could “anyone” include a TV or print reporter asking an oral question to a government official concerning Recovery Ac Policy? Or a particular Recovery Act project that might impact their viewership or readership? Is it possible the information provided, if government officials are subjected to such oral scrutiny, might end up “exerting influence on the process”?
How about a concerned citizen who happens to be a blogger?
Doesn’t this give government officials the cover to duck such oral inquiries? How does that enhance transparency?
And ultimately, doesn’t this smack of a wee bit of a conflict with the 1st Amendment (free speech, free press, the right to petition government)?
And if “the unique circumstances of the stimulus program” are enough to limit 1st Amendment rights, per this paragon of “ethics and government reform, what other “unique circumstances” might be cited in the future to do the same sort of thing, given the precedent this sets?
This is the Camel’s nose under the tent, being poked because of special circumstances.
“Lobbyists and organizations that lobby complained that the White House’s restrictions on lobbying on stimulus fund projects were discriminatory and unfair because the same restrictions didn’t apply to people like corporate executives or officials. So these memorandumly noted changes address that fairness issue by expanding the ban on orally petitioning the government or expressing one’s views through speech. In the interests of transparency the First Amendment must be sacrificed.
“The restrictions are also ambiguous enough that a lobbyist or other petitioner won’t be sure how to fully comply. So if someone runs afoul of White House officials, a phone call to a news outlet or a friendly prosecutor can punish the offender. Ambiguous rules plus capricious application equals negative rule of law.”
The only transparency in this process is the fact that the White House is telling you the rule. But the rule then precludes oral questioning which might make the process even more transparent. If even the remote possibility exists that such communication might “exert influence on the process” then it is prohibited.
The White House’s apparent intent is to run a transparent process. The result is overreaching by the executive branch with poorly thought through restrictions on speech that are seemingly unconstitutional. The problem is they obviously don’t feel that to be the case. Or if they do, they think they should have the right to restrict certain forms of communication between government and anyone they decide if “unique circumstances” are existent (guess who get’s to determine whether they are or not?).
Frankly that should bother you.
However, fear not – I’m sure those that continually cited the Bush administration for alleged expansion of executive power will be among the first to address this obvious abuse of Constitutional power and call for an immediate revocation of the rule.
While there is all sorts of silly criticism emerging on the right (including the pronunciation of her name and the fact that she likes certain latin foods), there is an emerging criticism which I think has some validity. Most of of focuses on a speech she delivered at UC Berkley in 2001 and published later by The Berkeley La Raza Law Journal.
“While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,” Sotomayor said.
“Although I agree with and attempt to work toward Judge Cedarbaum’s aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”
Although she attempts to have it both ways (“I agree” and “we do a disservice”), she seems to really be claiming that some level of gender or racial “empathy” is necessary to render “fair” judgments. And that only those who have lived that life are capable of such renderings. Here she essentially admits that to be the case as she perceives it:
“Personal experiences affect the facts that judges choose to see,” Sotomayor said. “My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”
How else do you interpret her statement except to say, “we can’t change the fact that personal experiences affect our work and the best we can hope for is we will “take the good” for those experiences and apply them …?”
That, of course, helps explain the statement most of the right object too the most, i.e.:
“…a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Given what she said above, this makes perfect sense. Although she claims to agree “judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law”, she then builds the case that a) such isn’t really possible, and b) in fact race and gender based experience is a positive that should be injected in such “reason of law”.
Her ruling in the case of the 18 white firefighters in New Haven CT seems to indicate she is indeed inclined to use race and gender bias in her decisions.
That is a legitimate and troubling point and certainly one which requires a very close look. But Republicans need to lay off the silliness (and words like “racist”) and stick with the legitimate points of contention her nomination bring. And they need to explain their concerns in a way which is both complete and easy to understand.
Another emerging hallmark of Obama rhetoric are the startling inconsistencies to be found there. For instance, his speech at the National Archives where he invoked the founding documents as the keepers of our fundamental rights and values and condemned the previous administration for its egregious violations of those right and values. All of it sounded lofty and certainly rhetorically satisfying. But then, within a few paragraphs, Obama trots out his policy plan for indefinite detention for those who we even suspect of wishing to do violence against the US.
And it was the past administration which did what that was so bad?
Even Sen. Russ Feingold can’t quite stomach the inconsistency:
While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world.
Gitmo is a place. And places can be shut down. But what Obama is talking about is a policy – a policy of government – in which people can be incarcerated without charges and held for as long as the government deems necessary. How again is that a difference from the previous administration? How is that better?
Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not. There is a real risk, then, of establishing policies and legal precedents that rather than ridding our country of the burden of the detention facility at Guantanamo Bay, merely set the stage for future Guantanamos, whether on our shores or elsewhere, with disastrous consequences for our national security.
I had to laugh at this – “resist such a temptation”? For heaven sake Senator, his administration is suggesting the policy! Why would he “resist the temptation” when it is obvious that his administration sees it as a necessary tool to combat threats against the US?
Worse, those policies and legal precedents would be effectively enshrined as acceptable in our system of justice, having been established not by one, largely discredited administration, but by successive administrations of both parties with greatly contrasting positions on legal and constitutional issues….
And that’s the point, isn’t it? Once it becomes policy – once it is enshrined in law (and I’m not, at this point, at all sure how the SCOTUS would rule on such a law although I’m certainly sure on how I think they should rule) it is open to use and abuse by government. So while we may or may not agree with what the previous administration did, in this regard, they never tried to make it policy and an legally blessed (but morally wrong) method of handling those we capture and incarcerate in this war against Islamic extremism.
Anyone monitoring what Barack Obama has been saying since taking the oath of office who doesn’t see a rather large authoritarian streak in the man hasn’t been paying attention. What he is suggesting is blatantly worse than what the Bush administration did. Unfortunately, it is mostly being lost in the ground clutter of the financial crisis. But it is certainly there for those who take the time to look.
First they came after the smokers. But I didn’t say anything because I don’t smoke. And then they came after the soda drinkers, and I didn’t say anything because I rarely drink soda.
But then they came after beer, but I couldn’t do anything because the precedent had been set (with apologies to Pastor Martin Niemöller).
Yes, sinners, you are going to pay for health care. You and the evil rich. “Sin” taxes are seemingly the chosen method of this administration for paying the bill for the upcoming health care debacle.
Consumers in the United States may have to hand over nearly $2 more for a case of beer to help provide health insurance for all.
Details of the proposed beer tax are described in a Senate Finance Committee document that will be used to brief lawmakers Wednesday at a closed-door meeting.
Taxes on wine and hard liquor would also go up.
Apparently they’re still discussing sugary drinks as well (although it seems diet drinks are not yet on the table) because, you know, obesity is a problem and since government will be paying for all of this (can taxing Oreos be far off?).
“If you make less than a quarter of a million dollars a year, you will not see a single dime of your taxes go up. If you make $200,000 a year or less, your taxes will go down.”
Unless, of course, you’re a smoker, a fattie or a boozer (or, heaven forbid, all three).
David Axelrod, Obama’s senior adviser talking about the appointment of a new Supreme Court Justice and the Constitution:
President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president’s stated preference for a nominee who will give the powerless “a fair shake.”
White House adviser David Axelrod said the U.S. Constitution, like any document of its vintage, must be subject to interpretation in a modern context.
“Fidelity to the Constitution is paramount, but as with any document that was written no matter how brilliantly centuries ago, it couldn’t possibly have anticipated all the questions that would be asked in the 21st century,” Mr. Axelrod said.
Barack Obama, today, talking about the prisoners at Gitmo and the Constitution:
But I believe with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values. The documents that we hold in this very hall – the Declaration of Independence, the Constitution, the Bill of Rights –are not simply words written into aging parchment. They are the foundation of liberty and justice in this country, and a light that shines for all who seek freedom, fairness, equality and dignity in the world.
I stand here today as someone whose own life was made possible by these documents. My father came to our shores in search of the promise that they offered. My mother made me rise before dawn to learn of their truth when I lived as a child in a foreign land. My own American journey was paved by generations of citizens who gave meaning to those simple words – “to form a more perfect union.” I have studied the Constitution as a student; I have taught it as a teacher; I have been bound by it as a lawyer and legislator. I took an oath to preserve, protect and defend the Constitution as Commander-in-Chief, and as a citizen, I know that we must never – ever – turn our back on its enduring principles for expedience sake.
Per Obama’s speech, the Constitution apparently “anticipated all the questions that would be asked in the 21st century” when it comes to Gitmo. Yet there’s Axelrod, claiming it doesn’t cut the mustard when it comes to the job description or duties of a Supreme Court justice and implying we must turn our back on it for “expedience sake” and redefine the job (give the “powerless” a “fair shake” – the job of the legislature).
So, which is it?
Is it too big to fail? Megan McArdle believes the possibility certainly exists (I mean was Arnie really in DC yesterday just to see the sights). Says McArdle:
If the government does bail out the muni bond market, how should it go about things? The initial assumption is that they’ll only guarantee existing debt. Otherwise, it would be like handing the keys to the treasury to every mayor, county board, and state legislature, and telling them to go to town.
But once the treasury has bailed out a single state, there will be a strongly implied guarantee on all such debt. So you don’t give them the keys to the vaults, but you do leave a window open, point out where the money’s kept, and casually mention that you’ve given the armed guards the week off.
Of course the right answer is not to bail out either. Failure is a great teacher. And then there’s the moral hazzard angle.
But in this day and age, that’s approach is almost unthinkable apparently. Government, as we’re being told, is the answer to everything.
My fear, based on what the federal government has done to this point, is they’ll “hand the keys to the treasury” on both the muni bond market and the states (with bailouts). They have no business doing anything in either place, but we’ve already seen that the arbitrary assessment that some entity is too big to fail apparently takes priority over economic law.
Once a single state is bailed out, there is nothing to stop other states from making a similar claim on the treasury.
Should such a thing happen in either case (or both), Federalism, which is on its last legs anyway, will be officially dead.
One of the things I try to consistently feature here at QandO is the depth of intrusion of the federal government into our daily lives. Talk about “mission creep”. There’s little that we do any more that doesn’t seem to involve the government looking over our shoulder and I, frankly, don’t welcome that sort of monitoring or intrusion.
So if you’re planning on selling your kids old books (or anything else that a kid under 12 might use) and they haven’t been “tested” first, you’re liable to a $100,000 fine. Now I know you’re reading this and saying, “no way. Our government would be that intrusive”.
I guess the best way to counter that is with the CPSC’s own words:
This handbook will help sellers of used products identify types of potentially hazardous products that could harm children or others. CPSC’s laws and regulations apply to anyone who sells or distributes consumer products. This includes thrift stores, consignment stores, charities, and individuals holding yard sales and flea markets.
The next line of defense for those who support this level of intrusion, once that level of intrusion has been exposed in the government’s own words, is “well, how would they enforce it”?
It’s not a bad argument (the answer is selectively), but it misses the real point.
Obviously, it’s unlikely the CPSA goons are going to bust up your yard sale. But putting out a detailed booklet that reserves the right to do so is hardly encouraging about where the implementation of this legislation is heading.
It is about precedent. And, it’s about acceptance. When both are established, it doesn’t require much in the way of the imagination to realize that like any entity which seeks to increase its power, government will soon attempt to stretch the envelope just a little further (further precedent/acceptance).
Wash, rinse, repeat.
It’s rare that I quit reading through a comment section because I happen upon what’s surely the best comment. However, this comment to Capt. Ed’s post about the Obama administration’s thuggish tactics in the Chrysler negotiations sums everything up perfectly:
“I did not have knowledgeable relations with it, that Constitution.”
This guy was a Constitutional Law professor?
Yesterday, Obama laid out these requirements for the replacement for Justice Souter:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. 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 as just decisions and outcomes. 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.
Jennifer Rubin, at Commentary, makes the following point:
The making of laws, which is a legislative function, is all about “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.” Federal judges decide what those laws mean and whether they conflict with the Constitution.
So it would seem that, as with many on the left, Obama is seeking someone who would be more comfortable in Congress and would certainly be seen as a “activist” justice appointed to legislate from the bench.
Rubin also deftly identifies the real meaning of Obama’s use of the word “empathy” :
You see, empathy is a code word for favoring criminal defendants, plaintiffs, labor and other groups which happen to match up with the liberal policy agenda. It’s a peculiar sort of empathy, otherwise known as bias for litigants based on their identity rather than the merit of their claims.
I believe she’s exactly right – what Obama has outlined as his requirements for the position is a liberal’s wet dream come true but completely confuses the role of the court, judges and legislators to the detriment of the citizens of the United States.
Unfortunately, due to their own failings, about all Republicans can do is, as Martin McPhillips said, whoop, holler and dance around the rim of the volcano for a while. That’s a pity, because given the “requirements”, this and subsequent appointments to the SCOTUS may be critical to our survival as a relatively free people.