Well, very soon we won’t have Justice David Souter to kick around anymore. Arguably George H. W. Bush’s worst decision as President (my choice), even topping the violation of his “no new taxes” pledge, Souter has haunted us for nineteen years with the nightmare of what might have been had Bush not listened to Warren Rudman and John Sununu on his appointment.
So what is to be expected from Obama with the appointment of a replacement when Souter steps down at the end of this court term? It is difficult to imagine anyone more reliably to the left on almost any critical decision, but things could be worse, and Obama offers some hints as to how they might be so. These hints are embodied in a number of quotes to keep in mind, two of the more prominent of which are:
“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. And that’s the criteria by which I’m going to be selecting my judges.” — July 2007 at a Planned Parenthood conference.
“The Supreme Court under Chief Justice Earl Warren never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society…………and didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted.” — September 2001 radio interview.
And just this week, upon learning of Souter’s retirement, Obama had this to say: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It’s also about how our laws affect the realities of people’s lives.”
“Empathy” for certain groups as a criterion for appointment of Supreme Court Justices? What does empathy have to do with the rule of law and fidelity to the Constitution, particularly the equal protection clause of the 14th Amendment? Redistribution of wealth? Breaking free from the restraints of the Founders? Sounds to me pretty close to a violation of his oath of office. And remember that Senator Obama voted NO on the confirmation of Chief Justice Roberts, citing concerns over his political philosophy. All of this plus the reversal by Obama of George W. Bush’s decision to exclude the American Bar Association from the vetting process for possible nominees. So you tell me if it can get worse than Souter.
In America, the “realities of people’s lives” to which President Obama refers involve more than anything else the freedom and opportunity guaranteed them by the protection of the organizing principle embodied in what is arguably the most revolutionary and successful document in world history. Let’s hope his nominee remembers that above all else.