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Obama’s Nonsensical Criteria

If President Obama hopes to win Republican votes for his Supreme Court nominee Sonia Sotomayor, he better hope that GOP Senators approach matters differently than Senator Obama did. Obama, of course, opposed the nominations of both John Roberts and Samuel Alito – and, in fact, said he would join in a filibuster of Alito. It’s worth recalling what Obama said in stating his opposition to Roberts (his case against Alito was almost identical):

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law…

The problem I face… is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. 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 percent of hard cases, the constitutional text will not be directly on point… in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart… The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak… given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The votes against Chief Justice Roberts and Justice Alito were, in my judgment, irresponsible. They were driven, I suspect, by one of two factors (or a combination of them). The first may have been rank partisanship. Obama was eager to gain the support of liberals in anticipation of his run for the presidency, and this is a vital issue for Democratic activists. The second option is that Obama believes in the argument he is making.

Obama insists that no quality is more important for a Supreme Court justice to possess than “empathy,” which is the latest semantic cloak for judicial activism. What Obama is looking for is “experience” – “experience,” he said in announcing Judge Sonia Sotomayor as his Supreme Court nominee – “being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.” [emphasis added]

Those are fine qualities to find in an individual; it’s far less clear – in fact, it is downright ridiculous – to insist they are necessary to be a Justice. For one thing, a person can be an outstanding Justice without having dealt with the kind of hardships and misfortune that Obama insists is the sine qua non to serve on the Supreme Court. What happens if the dissenting vote in Plessy v. Ferguson happened to have come from a person born to a well-to-do family and whose life was relatively free of hardship (no life is completely free of it, of course)? Should a person like John Marshall Harlan – who called slavery “the most perfect despotism that ever existed on this earth” – be excluded from the Supreme Court, and should his reasoning be invalidated, because he doesn’t have the right “life experiences”? If John Marshall didn’t face the obstacles and barriers deemed essential by Mr. Obama, should he have been kept off the Court, even if he possessed a deep and wise understanding of the law? Would Marshall be any less great of a Justice if his life was relatively free of hardship? And of course if Obama took his hardship standard seriously, he would be a great champion of Clarence Thomas, whose life story is a deeply inspiring one, filled with overcoming myriad hardships and misfortune.

Second, Obama’s use of the terms “empathy” and “compassion” are highly selective. One could reasonably ask why he doesn’t show empathy for, say, unborn children – or, in Obama’s case, for children who are born having survived an attempted abortion (as a state legislator, Obama wanted to deny protection to such children). What about low-income children who want to attend good private schools instead of awful public ones, but can only do so through a school choice program? And – to pull an example out of mid-air – what about empathy for a firefighter with serious learning differences (like dyslexia) who works extremely hard for a promotion, studies eight to 13 hours a day, hires someone to read to him because of his dyslexia, but is denied it because of the color of his skin? Obama’s sympathy for the weak and the powerless is clearly conditioned by his ideology. His sympathies magically attach themselves to those who can advance his political and ideological causes.

More fundamentally, Obama’s views do real damage to the concept of justice and equality before the law. He clearly wants Justices to favor one group (whom he deems to be the weak) over another (whom he deems to be powerful). But as Charles Krauthammer points out, the Supreme Court oath itself states, “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. … So help me God.”

President Obama wants the law to favor some over others, based on a very subjective standard – a sentiment, really – of who should win and who should lose. This view is deeply unwise and unjust. Republicans and conservatives ought to say so, and they ought to explain why it is so.

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