"In describing his search for a successor, the president said he would seek a nominee with 'a record of excellence and integrity...who understands that justice isn't about some abstract legal theory or footnote in a case book.'
Mr. Obama also stated his preference for someone attuned to the 'daily realities of people's lives' -- a sentiment conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism."
--Wall Street Journal, 2 May 2009.
"You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got... the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."
--Remarks by President Obama to Planned Parenthood on June 17, 2007.
I agree one hundred percent with President Obama that it is important to be aware of the daily realities of people's lives. I'm even with him on the whole empathy thing.
But here's where this former law professor falls flat. Remember, law is a creature of our government. And as we all hopefully remember from high school civics, in the United States there are three branches of government. I'm all in favor of having an executive branch with a man like Obama who strives to recognize what it's like to be a young, teenage mom. I will personally support candidates for the legislative branch, Congressmen and Senators, who try to understand what it's like to be African American, gay, disabled, or old.
But when it comes to the third branch, the judiciary, I want someone who understands that if a homeless woman carelessly pushes her shopping cart into a rich man's Mercedes and scratches the paint job, she is negligent and the wealthy man has a potential claim against her. If you can't stomach that, don't become a judge. Be a community activist, a legislator, or a President, as Obama has been in that order. It can't matter to a judge whether one party in a conflict is better off than the other; he needs to rule based on the facts and the law. And if the law is bad, well, let the legislators change it.
I would guess that in his constitutional law classes, President Obama probably taught The Federalist. Here's what Alexander Hamilton had to say in Federalist #78:
"The judiciary... has... no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment..." (Emphasis mine).
Western culture, it has often been noted, seems obsessed with threes. The Father, Son, and Holy Ghost. The monarchy, the aristocracy, and the commoners. The legislative branch, the executive branch, and the judiciary. Curly, Larry, and Moe. Whenever we categorize society or the universe into a triumvirate, we adopt an understanding that each member of the trio has a special function separating it from the others, and that in this manner the unit works as a coherent whole as long as everybody pulls their weight.
Where Obama is wrong to think that the Supreme Court is the place for empathy is perhaps best demonstrated by another famous trio set to make an appearance in a major feature film this week. The executive branch, represented today by President Obama, is like Captain Kirk--he needs to make sure the Enterprise doesn't slam into any stars or start interstellar incidents with the Klingons.
The legislative branch is more like Doctor McCoy. It can be passionate, maybe even sometimes emotional and irrational, but that's because you want someone with an honest bedside manner if you're lying in sickbay laid out with a bad case of Rigelian Fever.
The Judiciary needs to be Mister Spock. No emotions. Whether somebody is African American, gay, disabled, or old should be irrelevant. And it is illogical for counsel to pursue that line of reasoning.
Yes, I know that on our planet judges are humans, not Vulcans, and as the great twentieth century Earth Supreme Court Justice Benjamin Cardozo observed, "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (The Nature of the Judicial Process, 1921, p. 13). But if a judge doesn't at least make that attempt to see things objectively, he's doing a disservice to his position. He's being like Dr. McCoy when he needs to emulate Spock. He needs to suppress his emotions and grow a pair--of pointy ears, that is.
Let me emphasize that while I'm advocating a judiciary that doesn't care if you make twenty grand or twenty million, I'm not saying the bench should be cold as the Andorran home world. There are, after all, plenty of procedural issues to encourage the kind of result President Obama would endorse. I think Professor P.S. Atiyah put it well in An Introduction to the Law of Contract, 5th ed. (1995):
"An art dealer calls on a 'little old lady' and offers to buy her old canvas for a song, well knowing that it is a Constable worth many thousands of pounds. If he is not allowed to retain the fruits of his bargain, what incentive is there for art dealers to search out hidden treasures which may otherwise be lost to the public forever? Whatever the explanation, this is a classic sort of case where there is is no duty of disclosure, but it is also just the sort of case where courts might be expected to strain to discover some sort of operative mistake or implied condition, or actual misrepresentation." (p. 250).
So in my hypothetical example, it's fine with me if the court dismisses the rich man's claim against the homeless woman because he was illegally parked. Or it can rule that she is guilty but owes the Mercedes owner only the oldest pair of shoes in her shopping cart. What a court should not do is take into consideration the wealth of the litigants before anybody has even be sworn in.
That's no way for judges to live long and prosper.