By Kevin D. Williamson
Thursday, February 25, 2016
Writing at SCOTUSblog, President Barack Obama laid out,
with habitual banality, his criteria for choosing a Supreme Court justice. He
did not use the word “empathy,” which figured so large in his prior statements
on the subject, but he made the same case.
There will be cases in which a judge’s analysis necessarily will be
shaped by his or her own perspective, ethics, and judgment. That’s why the
third quality I seek in a judge is a keen understanding that justice is not
about abstract legal theory, nor some footnote in a dusty casebook. It’s the
kind of life experience earned outside the classroom and the courtroom;
experience that suggests he or she views the law not only as an intellectual
exercise, but also grasps the way it affects the daily reality of people’s
lives in a big, complicated democracy, and in rapidly changing times. That, I
believe, is an essential element for arriving at just decisions and fair
outcomes.
Here, the president is quite nearly quoting his own 2009
remarks:
I will seek someone who understands that justice isn’t about some
abstract legal theory or footnote in a casebook. It’s 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.
On the subject of “empathy,” he said:
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.
There are many reasons for congressional Republicans to
stand firm in their opposition to confirming any Supreme Court appointment from
Barack Obama this year. The main reason is political: Obama’s maximalist
approach to presidential power can be met only by a similar response from the
legislative branch. For example, it may (or may not, but, arguendo) be the case
that President Obama technically has the power to usurp congressional authority
by unilaterally enacting through presidential fiat an immigration policy that
Congress has pointedly rejected. A decent respect for our constitutional
mechanics, democratic norms, and the separation of powers would argue against
his doing that, but he is determined to make the most out of every power that
is technically his under the law. In the same way, it unquestionably is within
the Senate’s power to decline to schedule a hearing or a vote on any given
Supreme Court nominee. Under ordinary circumstances, it probably would not be
wise or seemly to do so, but these are not ordinary circumstances: The Senate’s
refusal to give the president the time of day may be unprecedented, but so is
President Obama’s abuse of presidential power. The Senate would have been
justified doing this years ago.
But, beyond that, the presidential blog post (what an odd
thing to write!) and his previous statements remind us of something more
fundamental: Barack Obama rejects the notion of the rule of law as such, and he
nominates to the bench justices who also reject it, which is dangerous and
corrosive.
Contrary to the president’s insistence, yes, the law is —
or is intended to be — a set of abstractions, a neutral body of rules that
applies equally to everybody, be they gay, straight, black, white, old, single
mother, murderers, bounty hunters, desperados, mugs, pugs, thugs, nitwits,
halfwits, dimwits, vipers, snipers, con men, Indian agents, Mexican bandits,
muggers, buggerers, bushwhackers, hornswogglers, horse thieves, or Methodists.
That is the beauty of the rule of law — and it is, incidentally, the only thing
that makes the rule of law useful to the poor and the marginalized.
President Obama and like-minded thinkers (“thinkers”)
believe that the law should be a respecter of persons for purposes of
restitution, putting a thumb on the scale in favor of the poor, the powerless,
minorities, etc. There is good reason to object to that on principle — you
either believe in equality under the law or you don’t — but there’s a practical
reason to reject that, too: If the law is a respecter of persons, you can bet
that it will have outsized respect for persons of wealth and power. Consider
all of the economic policy over the last 60 years that has been, in theory,
aimed at “leveling” some imaginary “playing field” (one of the great examples
of mistaking the metaphor for the thing itself) or raising blue-collar wages,
or promoting manufacturing, or stimulating the economy, etc. Who actually
benefited from all that? In almost every case, it was the powerful and the
politically connected, and generally the wealthy. (The owners of Solyndra thank
you very much for your investment in their well-being.) The powerless, above
all, should want a rule of law that is truly neutral — it is their best chance
at achieving real justice.
Our courts and law-enforcement institutions are
imperfect, of course, and the law already is imperfectly applied. But we should
not make a virtue out of those defects, or attempt to make a virtue out of
them. Any president or judicial nominee who makes an argument from empathy –
that it should matter to a judge who you are and what demographic
characteristics you bear — should be understood as an enemy of the rule of law.
Barack Obama has proven himself that time and again. Republicans are right not
to give him the opportunity to do more damage.
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