If you ask Americans what issues matter most to them in choosing a president, the candidate's judicial philosophy is not likely to make it into the top 10. But a president's power to nominate judges is, in fact, one of his most powerful tools -- and often leaves a legacy that lasts far longer than any policy initiative.
President Dwight Eisenhower was no liberal activist, but his appointment of Earl Warren as chief justice of the U.S. Supreme Court dramatically shifted the nation leftward for decades on everything from criminal justice to separation of church and state to legislative reapportionment. Similarly, President Ronald Reagan was far more successful in reshaping the courts than in reducing the size of government. So it's important to know how each of the current candidates will go about picking judges when one of them becomes president.
Both Barack Obama and Hillary Clinton are graduates of Ivy League law schools, Harvard and Yale respectively, and Obama taught constitutional law for a decade. Both approach the Constitution as a "living document," which they believe must constantly be interpreted anew depending on changing circumstances, mores, and values. The literal meaning of the words themselves are no more important in their eyes than the judge's interpretation of what is right and just. Thus, the 14th Amendment's guarantee of equal protection under the law without regard to race or color can be interpreted to permit discrimination against whites if it benefits blacks or Hispanics because, as a group, the latter have faced discrimination in the past and remain, on average, economically disadvantaged.
Given this philosophy it's no wonder that Barack Obama set out his criteria for picking judges this way. "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 going to be the criteria by which I'm going to be selecting my judges." When Obama voted against Justice Samuel Alito's nomination to the Supreme Court, he said it was because Alito's record showed "extraordinarily consistent support for the powerful against the powerless." In other words, a judge's role should be to decide which party should prevail on the basis of some abstract notion of fairness.
Now, this might strike some people as a good thing -- though I can't for the life of me figure out why anyone should have to go to law school or have any familiarity with legal principles and precedents in order to become a judge if compassion is the chief criterion on which cases should be decided.
Linda Chavez is chairman of the Center for Equal Opportunity and author of Betrayal: How Union Bosses Shake Down Their Members and Corrupt American Politics .
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