President Obama made a short statement about the retirement of Justice Souter in which he outlined what he will be looking for in Souter’s replacement. He stated, in part:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether 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 as just decisions and outcomes
By indicating that his concern is not just with just decisions but also just outcomes, Obama reveals the lawless quality of his thinking. The legitimate function of a judge is to reach just decisions, full stop. Once judges, or the president who appoints them, start thinking about just outcomes, we are well down the path to judicial tyranny. And once just outcomes are defined as those that display empathy for “the people,” we could be starting down the road to banana republic status.
Obama apparently wants outcomes that will make people feel welcome in their own nation. It’s not clear to me what he’s referring to here. But whatever it is, the extent to which people feel welcome must be determined by how their neighbors view them and, to the extent (limited, one hopes) the law becomes involved, the rights and benefits conferred by the language of the laws in question.
If Obama wants to appoint a Justice who has run or worked in a soup kitchen, that’s fine. But it looks to me like he wants to appoint a Justice who will reach outcomes that establish “soup kitchens” regardless of whether that’s the best view of the legal provision he or she is interpreting.
Expect the worst, not just from this judicial nomination but from all subsequent ones.