You might remember this debate answer from Barack Obama about the kind of justices he would nominate:
I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I’ll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it. I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.
But in a pinch, with Election Day looming, Obama answers a question from Katie Couric about his aunt who is illegally residing in the country:
“If she is violating laws, those laws have to be obeyed. We’re a nation of laws,” Obama replied. “Obviously that doesn’t lessen my concern for her, I haven’t been able to be in touch with her. But I’m a strong believer you have to obey the law. “
So which is it–are we making it up as we go along or adhering to the laws as written (be it the Equal Pay Act or the immigration statutes)? Are we really in search of fairness for the down and out? For “empathetic” judges who don’t get hung up on small things like the text of the Constitution and laws? When the country is really paying attention–maybe not so much.
You see, once you buy into Obama’s Ledbetter argument — the idea that courts should be “standing up” for litigants or favoring one side or the other because of their personal situation – there is no end to it. The courts are then placed in the role of social workers and the task is simply to find an excuse to do the “right thing.”
In a specific and easily understood case, Obama recognizes this is problematic – and more importantly, knows that voters believe it to be unacceptable. So he falls back on the common sense notion, which happens to be the bedrock of our functioning legal system, that laws are meant to be executed regardless the identity of the litigants. The surest way to adhere to that is to appoint judges who aren’t in the fairness business. Unfortunately, he has made crystal clear that he sees no merit (outside an eleventh hour TV interview) in that concept.