A year ago, in connection with his decision to choose a successor to Justice Souter, President Obama said that the quality of “empathy” was important in a Supreme Court Justice. The notion that one should decide cases based on empathy, rather than the dictates of the law, must not have polled well because, as the Washington Post reports, this time around “reporters could not bait White House press secretary Robert Gibbs into even saying the word.”
So what is the White House saying? According to the Post, Obama now says he wants a justice with a keen understanding of how the law affects the lives of “ordinary citizens.” Thus, says the Post in its front-page blurb, the search is on for someone who, like Justice Stevens, can relate to ordinary citizens.
The Post’s story raises several questions. First, what is the difference between an empathetic justice and one who is sensitive to how the law affects people’s lives? Stated differently, why does Team Obama believe that, having been unimpressed by empathy as a judicial quality, the public will rally around the same concept described in other words?
Second, where is the evidence that Justice Stevens’ jurisprudence better embodies concern for the lives of ordinary Americans than that of other justices who have decided key cases differently? The public has always been repulsed by racial preferences under which the best qualified candidate for a job or for college admission is passed over because of his or her race – preferences that Stevens was inclined to uphold. And the concerns of ordinary citizens are not vindicated by decisions that expand the rights of criminals or foreign terrorists who are out to harm them – decisions that Stevens was prone to render or support.
The Post notes that the Obama administration is looking ahead to upcoming battles over its own legislation, especially Obamacare. It suggests that the White House wants a justice “who would show some deference to the legislative branch’s prerogative in making laws that they think are for the benefit of the country.” It’s heartening suddenly to hear leftists arguing for deference to the legislature. But the public not only dislikes Obamacare, it favors repeal. Thus, the White House’s reformulated empathy standard can be viewed as cutting in favor of a decision that would find Obamacare unconstitutional.
What Obama really wants, I think, is a justice who will be animated not by what ordinary citizens think they want, but by what the liberal elite has concluded they need. This resolves what the Post takes to be a contradiction in Obama’s approach. The Post points out that, while claiming to want someone who understands ordinary Americans, Obama has developed a short list that consists almost entirely of candidates from within “the judicial monastery.” Lawyers who, as politicians, deal with ordinary citizens in a professional capacity, are nearly absent from Obama’s list. But the supposed inconsistency disappears once we recognize that Obama is looking for a man (or woman) of the people as the people should be, not as they actually are.
Justice Stevens himself is a man of the people only in that sense. He came from a wealthy Chicago family, obtained his education from elite institutions, clerked for a Supreme Court justice, practiced business law (antitrust mostly), and then became a federal appeals court judge. That’s a fine resume for a Supreme Court justice, but it qualifies Stevens as someone who meets Obama’s “understands the concerns of ordinary citizens” standard only to the extent that Obama agrees with his opinions and votes. Had Stevens not “grown” into being a liberal, his credentials and life story (and his age) would be cited as evidence that he does not understand ordinary Americans.
Obama’s quest for words that dress liberal jurists up in attractive garb will once again prove futile. He can find liberals with attractive life stories. But in a country that believes strongly in the rule of law, he can’t articulate a substantive standard under which the selection of the kind of justice he wants will seem palatable.
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