Instead, Obama wants a policymaker sitting on the Supreme Court – in fact, a super-lawmaker on steroids. He’s looking for a judge willing to engage in an enterprise that has nothing to do with the actual process of adjudication – that is, interpreting the laws that have been passed by a legislature and signed by an executive. Rather, Obama’s ideal nominee will eagerly seek to participate in the inherently political enterprise of deciding cases based – not on the Constitution and laws – but on whether s/he personally feels one particular outcome would be preferable to another. That’s known as results-oriented jurisprudence. And it’s dangerous.
The kind of judging the President approves is completely subjective. Justices pluck a phrase from the Constitution and imbue it with a new, hitherto- unimagined meaning in order to reach a liberal result consistent with their own personal political or social sympathies. By such formulations, the concept of “liberty” can be expanded at a Justice’s own whim to authorize constitutional protection for everything from assorted abortion rights to gay sex (as, ironically, Reagan nominee Anthony Kennedy has done over the years). And in the future, if President Obama’s justice has anything to say about it, “liberty” will be extended even farther to serve as a rationale for imposing gay marriage, eliminating restrictions on partial birth abortion, and validating any other trend du jour that the left embraces.
Eventually, should a Republican president start nominating justices based primarily on their “empathy,” surely even liberals will realize that it is dangerous to install a judiciary that relies on feeling, rather than reason, as the indispensable guide to judicial decision making. After all, a judge’s empathy extends most predictably to parties to whom s/he relates or with whom s/he sympathizes personally or politically. As such, relying on “empathy” undermines citizens’ confidence that all will be equal before the bar of justice – and that adjudication itself will be impartial. That assurance is essential for a free people to remain free.
There is a reason that Lady Justice wears a blindfold. Justice is supposed to be blind to the race, gender, finances, politics – and every other “empathy”-eliciting – characteristic of those who seek it in good faith. Apparently, it’s too much to hope that figuratively, at least, President Obama’s justice will be, too.