Constitutional "Empathy"

Posted: May 11, 2008 11:15 AM
Constitutional "Empathy"

John McCain delivered an important speech at Wake Forest on Tuesday, but how many Americans even heard about it? Much of the media was too busy obsessing over the latest twist in the Democratic primary to pay McCain's remarks much attention. As the press breathlessly declared Hillary Clinton's demise (again) and wildly celebrated—er, objectively reported—Barack Obama's solid win in North Carolina, conservatives were showering McCain with positive reviews on a crucial issue: The federal judiciary. Republicans who remain unsold on McCain should take heed.

My friend Hugh Hewitt likes to quip that there are seven reasons to embrace John McCain—the war, and six Supreme Court justices over the age of 68. The line often gets a laugh, but it's no joke. Stemming the tide of judicial activism, which systematically strips the American public of its right to decide policy issues at the ballot box, is an urgent priority. The next president will likely nominate several justices to the nation's highest court, as well as hundreds of other federal judges around the country. Neither Hillary Clinton nor Barack Obama should be entrusted with this responsibility. Each is beholden to leftwing special interest groups like the People for the American Way (evidently "American Way" means "governance by liberal fiat"), and each has demonstrated a knee-jerk hostility to exceptionally qualified jurists who happen to offend their leftist sensibilities.

The Mainstream Obamedia informs us that it's a waste of energy to deconstruct Senator Clinton's troubling judicial philosophy, since her chances of being president are less than none. We'll play along and focus solely on Senator Obama's view of what qualifies someone to don the black robes of justice. McCain's speech pointed out that the eminently qualified and overwhelmingly-confirmed John Roberts proved sub-standard for Obama. Mr. Post-partisan attempted to justify his vote against Roberts by pontificating that in order for a judge to be acceptable, he'd have to share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

While this laundry list of feel-good qualities may be helpful in identifying the next Dr. Phil, it has absolutely nothing to do with the job description of a Supreme Court justice. Values, internationalist savvy, and empathy do not, and should not, determine how a jurist interprets the text of the US Constitution. Conservatives and liberals have long quarreled over how the Constitution should be interpreted. The former contingent argues that the framers' intent should take precedence, and the latter contends the document is "living and breathing," constantly adapting to mirror contemporary society. Alarmingly, Obama's stated judicial skill set doesn't even mention the Constitution. Obama appointees, it's not unreasonable to suspect, would be very liberal lawyers who reflect the "core concerns" and "empathy" of Obama himself. Associate Justice Michelle Obama, anyone?

McCain assailed this ridiculous standard in his North Carolina speech. "Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other," he said. Bingo.

The Obama campaign fired back, sneering, "Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves." Kind of like the ordinary Americans who were forced to fend for themselves after the Kelo decision upheld the government's seizure of their land, senator? Rudy Giuliani had one of the most appropriate reactions to the shrill statement. Appearing on Fox News, Giuliani laughed out loud at Obama's response, then calmly explained that the Illinois senator's vision "is not what a judge in the American legal system is supposed to do...a judge is supposed to interpret the law, and the law is written by other people."

When it comes to "bringing people together" and eradicating the "old politics" of red states and blue states, Obama's actual record on Constitutional issues has been rather slippery. He was asked about a controversial second amendment case currently before the Supreme Court and declined to comment, reasonably asserting that he doesn't like to "take a stand on pending cases." Unless, of course, he's filing an amicus brief in opposition to Indiana's tough voter identification laws, in which case he's actively taking a stand on a pending case. I guess it's a nuance thing. Incidentally, six justices failed to embrace Obama's deep values, concerns, and empathy on that particular issue.

Obama also assures Americans that he's the best candidate to reach across the isle to heal the country's divisions. What evidence does he offer to reinforce this claim? Why, his courageous rhetorical defense of the 22 Democratic senators who dared to vote in favor of the Roberts nomination, of course! Although Obama himself joined the ranks of Ted Kennedy and Barbara Boxer to vote "nay" on the empathy-deficient Roberts, I'm sure Pat Leahy, Carl Levin, Chris Dodd and others were relieved that this freshman Senator had their back. Bipartisan heroism at its finest, to be sure.

To his credit, though, Obama has been unambiguous about his desire to appoint activist judges who share his leftist worldview, and who will craft law rather than interpret it. For some reason, boring old John McCain still clings to the outdated notion that We The People make the law through our elected representatives. He still believes that Americans want their votes to count for something, and that their voices shouldn't be silenced by tyrants in robes. He's asked Ted Olson and Sam Brownback to chair his judicial advisory committee. He pledges to appoint judges in the mold of Roberts, Rehnquist, and Alito.

For those conservatives who continue to whine about the choiceless choice they face in the upcoming election, and who carp that "McLame" won't be any better than his Democratic opponent, look no further than the judiciary. There's a real choice in November, and those who plan to pout in the corner on election day will help pave the way for Obama's confused and dangerous judicial philosophy to win the day—and the ill effects may reverberate for decades. Wake up and smell the empathy.