As was appropriate, the President's remarks on the impending retirement of David Souter from the high court are gracious. Whatever one thinks about his jurisprudence, Justice Souter is due respect for his position and his public service. It is not unfair or unreasonable to expect that the President's remarks would involve political calculations. This is when he begins to make his case for his next appointment. But was it really necessary to begin his remarks with a load of utter nonsense? For example:
To say that Souter "came to the bench with no particular ideology" and that he "consistently defied labels" suggests either cluelessness or dishonesty. Souter was very easy to label: he acted as a judicial liberal from the moment he joined the court. Unless you are willing to imagine that he was struck down on the road to Damascus, he was probably a good judicial liberal before his nomination by Bush 41. There is no blame for Souter in this; it was papa Bush's job to get it right and in fine family tradition he didn't.
More disturbing were the President's comments on the kind of judge he wants to put in Souter's place.
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. 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. 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.
Here's the problem: "abstract legal theory" and "footnotes in case books" are what constitutional law is all about. Every time the High Court decides a case, it formulates rules that have to be abstract because they have to be applied by lower courts to a range of cases, many of which involve situations that cannot be anticipated. When the Court decided (correctly) in Texas v. Johnson that the First Amendment freedom of speech protects the right to burn an American flag as an act of protest, the Court wasn't just thinking about the "daily realities" of Texas or Johnson. It was of necessity thinking about any person who might come into a similar collision with some governmental power. Is the President really as clueless about the nature of constitutional law as he seems to be?
Worse still, the President's invocation of "empathy" is offensive to three or four hundred years of judicial tradition. Has President Obama never seen an image of blind justice? What is the point of the blindfold that the Goddess of Equity wears? She wears it precisely so she can't "identify with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes," but instead must see every person as the same regardless of his or her status and fortune.
Let's take an example. Suppose a judge believes that a man was wrongly convicted of raping and murdering a child, even though the man is obviously guilty. Let us say he confessed and revealed knowledge that he could only have had if he were the perpetrator. But the evidence on which he was convicted was tainted by an illegal interrogation. Should the judge be swayed by her empathy for the parents of the child victim (not to mention possible future victims), or should she uphold products of abstract legal theory like the exclusionary rule and the Miranda rule? Does the President really want a judge who would abandon the latter out of a concern for whether people "feel safe in their homes"?
The President does not seem to realize that his desire to factor in empathy in judicial decisions runs directly contrary to "the rule of law" that he also claims to believe in. The "rule of law" means that the law as it stands must overrule the personal feelings and agendas of the people who administrate it. That includes even those empathetic good persons that Obama wants to put on the Court.
President Obama claims to believe in "our constitutional traditions," and the "constitutional values on which this nation was founded." Let us hope that whoever he appoints will not be as clueless about these traditions and values as he is.