President Barack Obama’s call for Supreme Court justices who demonstrate the proper “empathy” isn’t merely wrong; it’s unlawful, indeed anarchic, and it utterly trashes the entire American tradition of equal procedural treatment under the law.
The proper conservative response to any nominee forwarded by Obama under such criteria is to demand, and force, extended and illuminating public debate in the Senate.
Each argument — first, the anarchic quality of the criteria; and second, the tactical response to the nomination — deserves separate and distinct elaboration.
To review, here is exactly what Obama said about how he will choose a nominee: “I will seek somebody with a sharp and independent mind, and a record of excellence and integrity,” he said. “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 peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
As many others have been arguing all week, that statement is wrongheaded on so many levels that one barely knows where to start in opposing it. At the most basic level, Obama misidentifies the role of the Supreme Court: As Oliver Wendell Holmes, Jr., once famously said, the court’s job is not to “do justice,” but to uphold the law. At the level of the high court, any member of the court who tries to mold decisions to best “affect the daily realities of people’s lives” and of “identifying with people’s hopes and struggles” is directly contravening his own oath of office to see that the Constitution and laws are faithfully executed.
Let’s use Chief Justice John Roberts’ now-famous analogy of a Justice’s job to that of an umpire. Imagine the chaos that would ensue if an umpire decided that a last-place team playing a first-place team deserved a better “outcome” in order to make good on its “hopes and struggles,” and so called “ball four” on what really was a strike on the outside corner in order to help the poor team walk in the winning run.
That umpire ought to be banned from the game for life. The same holds true for a Justice who decides that a rich man ought to pay a poor man for a problem the rich man didn’t cause, merely because the Justice has “empathy” for the poor man. A few instances like that would quickly create a government not of laws but of men, one where nobody knows the rules but where everybody knows that the way to change the score is to play to the judge’s own desires, biases and preferences
If Obama wants to play the “empathy” game, the public should be asked who merits more empathy: Obama’s favored down-and-outers, or the ones whom Obama would disfavor? Among the latter, Obama might find that more Americans might have empathy for the street cop who mistakenly shoots a criminal in the back in the dark after first being fired upon. Empathy for the child 33 weeks into gestation, a being who clearly can experience excruciating pain, whose head is crushed and suctioned out during a partial birth abortion.
Empathy for the teacher who gets sued for letting slip in class an unpremeditated exclamation of “Praise Jesus!” when a struggling student aces a tough math equation during class. Or for the business owner forced to close up shop after a lawsuit when somebody slipped and fell on goose poop on the front stoop – from geese that state game wardens forbade the owner to remove even when she wanted to. (True story.)
Maybe the laws as written would favor the folks conservatives have empathy for, or maybe they would favor those whose pain Obama feels. It really shouldn’t matter whose ox is gored: whomever is favored by the laws as written is who should win the case, all empathy notwithstanding. Otherwise, nobody can or will respect the law, because the law itself will have no force – and the “force of law” will mean, in the end, only whatever is favored by the judge to whom allegiance is owed by the deputy with the biggest gun.
Conservatives need to explain all this – and also explain (as I will in a later column) why it is particularly at the Supreme Court level that empathy is least appropriate and “abstract legal theory” absolutely and entirely appropriate. The American public need to understand it. And the only way to explain it in a way that can be understood is to take the time to debate it in a forum to which every American can be riveted.
This leads to the second notion in this essay, the tactical and moral imperative of extended debate. There was a time when that’s what a “filibuster” actually was – not a procedural maneuver to forever kill a bill or nomination, but a tool of the minority to ensure their voices are properly heard, with time enough to be persuasive, before a final vote.
There is nothing wrong, and nothing whatsoever in contrast to American tradition, for a minority to refuse “cloture” — in other words, to TEMPORARILY filibuster — judicial nominations one, two, or even three times. If the minority so does, it ought to make clear that it will indeed at a reasonable time allow the nomination to move forward to a final, simple-majority vote — but only after first being afforded ample opportunity to see if it can rally public opinion enough to change some minds against the nomination. Or, at the very least, to better educate the public in a deliberative manner about what is at stake.
A killer filibuster for a judicial nominee? Never. A tactical filibuster that is quite publicly an intermediate step? If necessary, then certainly.
More on this idea, too, in a future column. For now, it’s enough to lay down a marker: Here in the United States, the law, not the judges, is supreme.