Speaking to a Planned Parenthood Conference in Washington, DC, in July 2007, then-Senator Barack Obama made the following observation with respect to the qualifications of Supreme Court justices:
“We need somebody who’s got 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. And that’s the criteria by which I’m going to be selecting my judges.”
Some time later, the brilliant Thomas Sowell responded with this common-sense question:
Do we really want judges who decide cases based on who you are, rather than on the facts and the law? … We are supposed to be a country with ‘the rule of law and not of men.’ … Obama is proposing the explicit repudiation of that ideal itself. That is certainly ‘change,’ but is it one that most Americans believe in?
Well, with respect to the renewed fervor over hate crimes legislation, I would say that the liberal answer to Sowell’s question is undoubtedly “yes.” But that is a discussion for another post. Back to the subject at hand, in a follow-up piece published in The Wall Street Journal, Steven Calabresi noted:
Every new federal judge has been required by federal law to take an oath of office in which he swears that he will “administer justice without respect to persons, and do equal right to the poor and to the rich.” Mr. Obama’s emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.
No doubt progressives and liberals are thrilled at the prospect of a kindred spirit in the White House who is dedicated to undoing the legacy of the “White Injustice System.” But before the celebration gets too far out of hand, they should ask themselves a simple question — when the balance of power shifts again to the right (and it will, it always does) are they still going to be comfortable with a standard of “empathy,” especially if a President Palin or a President Cantor decides to pick justices who empathize with the unborn, or the terminally ill or handicapped, or the victims of violent crimes, or with those who believe in enforcing existing immigration laws?
Article III of the Constitution is quite clear about the role of the Supreme Court:
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases … the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The Supreme Court was not intended to be an arena for emotional appeals or social engineering. We had better hope that there are enough Democrats with a clear understanding of this basic fact to prevent President Obama from placing a social justice maverick in an office whose duties have been traditionally (though not exclusively) bound by the merits of a case, rather than its degree of political correctness.