President Barack Obama’s has stated his nominee to replace retiring Justice David Souter on the United States Supreme Court must have “empathy” for “people’s hopes and struggles.” That is, he must be able to empathize with all of the American people. If empathy means to put oneself in another’s shoes, the new Supreme Court justice will have to be a man or woman who has tried on a lot of footwear, everything from stiletto heels to waterproof steel-toed work boots.
A person who has empathy for “people’s hopes and struggles” would be ideal if the job opening were for priest or director of a women’s shelter, but a Supreme Court justice’s job is a little more nuanced. A Supreme Court justice must interpret the law based on precedent and the U.S. Constitution. He must resist the desire to take the Constitution to mean whatever the majority at a given time says it means, which is one reason the Founders went to all the trouble to write it down in quill pen, and why they made it so hard to amend. And it is why Gladstone called the U.S. Constitution “the most wonderful work ever struck off at a given time by the brain and purpose of man.” When it comes to the business of the Court, wondering how the little old lady in Dubuque would feel about 14 Penn Plaza LLC v. Pyett, or any of the other dull but highly technical cases currently on the docket seems like a distraction.
Obviously a Supreme Court justice like the one Mr. Obama proposes will have no desire to stick to a strict constructionist reading of the Constitution. He will find it a cold and impersonal document. He may be put off by its stuffy language and antiquated parchment. He will want to freshen it up a bit. He will want to modernize it, maybe add some of those cute emoticons to the text. A great man once said: “All that is valuable in the United States Constitution is one thousand years old.” Such statements are heresy to Obama and his supporters, who regard everything older than themselves as hopelessly passé.
This is not to diminish the American people’s “hopes and struggles,” which are important. I suspect I have hopes and struggles just like any one else, but if a U.S. Supreme Court nominee were to ask me about them I would probably tell him to mind his own business. But then I am a throwback to a simpler day when people had the pride and self-respect to wash their dirty laundry in hot water and powdered detergent before they hung it outside to dry. Like many Americans my hopes are on a modest scale and are firmly grounded in reality. I do not expect world peace or clean energy. I just hope my pickup lasts another 20,000 miles.
AS FOR FINDING a justice who empathizes with struggling Americans, is the president slyly hinting his nominee will be one of the guys living down at Midtown Mike’s Soup Kitchen and Homeless Shelter? Hopefully not the guy who rants and raves about the world coming to end — after all, Al Gore already has a job. U.S. Supreme Court justices typically come from the ranks of the federal court of appeals, and as such, they tend to be fairly well-off lawyers. As of 2008, courts of appeals judges earned an annual salary of $179,500, to say nothing of their spouse’s income, and income earned from speaking engagements, books, and teaching. I suspect the last struggle most of the lawyers qualified to sit on the Nation’s Highest Bench faced was when they had to decide between the Mercedes and the BMW, or whether Daughter would attend Smith or Vassar. Suffice it to say, the days of prospective justices raised in poor sharecropper’s shacks have largely passed.
When the president said his nominee must be able to empathize with our hopes and struggles, Obama was just playing to his audience: his faint-hearted supporters and the media, which as we know are one and the same. The president mouthed all the expected platitudes and clichés and used all the familiar buzzwords guaranteed to make the masses swoon. Hopefully Mr. Obama is simply paying the usual lip service to his narrow-minded supporters and intends to find a qualified nominee, or at least someone with a bit of respect for the Constitution as written.
It will be a struggle, but that at least is the hope of the American people.