Last week, the president gave a press conference where he presented his criteria for appointing a replacement for retiring justice David Souter. I quote the president at length to capture the greater context and emphasis his key phrases in bold:
"I will seek someone who understands that justice isn't about some abstract legal theory or a footnote in a case book, but also about how our laws affect the daily realities of people's lives, how 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. I will seek somebody who's 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."
There is no surprise here about Obama's judicial philosophy. To his credit, this is something he boldly proclaimed throughout his candidacy. Unfortunately, polls show that a minor percentage of voters are concerned with presidential court appointments. Accordingly, this issue, as with others, prove that Obama's radical constitutional values went unnoticed by many who voted for him. But now, we're all seeing them come to light.
Since his position is so thoroughly established, a careful criticism of this speech is warranted. The president makes several assumptions in his speech, four of which are discussed here.
1- If we don't get justice from "legal theories" and "case books," where do we get it from?
The only job of a Supreme Court justice is simple: To clarify matters of law in the United States as authorized in Article III of the Constitution. No other means of determining justice is implied anywhere.
2- What does Constitution have to do with "people's hopes and struggles?"
Obviously, our government should rule with the interests of the people in mind. That's the job of democratically elected representatives in a republican form of government. Not only is it not appropriate for judges to base decisions on the people involved, but it also leads to subjective standards and arbitrary decisions that waft with the winds of emotion. Furthermore, honoring the Constitution and the daily lives of individual Americans can be contradictory. If congress passed a law that is otherwise constitutional, Obama seems to want a judge who will rule out that law if it causes someone to "struggle." One must take priority. The president, as the people's representative, is tasked with appointing judicial nominees on our behalf. Their job is to uphold the Constitutional intent of our founding fathers (and Congress in the case of amendments). There is simply no room for justices of the court to account for the hopes and struggles of any American apart from this. To do so, would be to betray the Constitution and the very purpose they've sworn an oath to uphold. To do otherwise is to untie lady justice's blindfold.
3- What are Obama's "constitutional values?"
In a debate with John McCain on October 15, 2008, Obama clearly explained his method for choosing a Supreme Court justice. Obama stated his idea for a potential Supreme Court nominee by referring to a dismissed case of unequal pay involving Lily Ledbetter, he said, is the perfect illustration. When asked by the debate moderator, how Senator Obama would choose appointees to federal courts, he replied, "The most important thing in and judge is their capacity to provide fairness and justice to the American people...I will look for those judges who have an outstanding judicial record, who have the intellect, and hopefully who have a sense for what real world people are going through." Obama proved his sincerity by signing the Lily Ledbetter Equal Pay Act as his first piece of legislation as president. We should expect the same with his first Supreme Court pick.
4- Can we apply the Constitution as the founders intended "in our time?"
The implication here is that the Constitution is outdated and cannot be applied as it was originally intended. By rejecting the validity of authorial intent, Obama seems to be embracing the Constitution as a living document. In this sense, Obama oversteps the balance of powers. Rather than Congress alone having authority to change the Constitution, he expects each justice to do the same. Such deconstructionism erodes away the foundation of our government. If there is no objective meaning to the Constitution, the judge himself replaces the Constitution as the ultimate authority.
Perhaps this can all be summed up best by the analogy Justice John Roberts alluded to during his confirmation hearings. Chief Justice Roberts referred to his judicial philosophy as that of the impartial "umpire." One News Now guest columnist Peter Heck says "the role of an umpire...is to call balls and strikes based on a predetermined strike zone. The umpire does not change the strike zone throughout the course of the game. Nor does he consider the socioeconomic, athletic, or racial background of the individual batter. He doesn't determine for himself whether it is "fair" that one team's pitcher seems to be more skilled than the other, and then seek to "even the playing field." He is a neutral party with neither force nor will, merely judgment." I think he's right.