Obama's criteriaAs quoted by Walter Williams and referred to in many articles and blog posts, Obama's stated criteria for finding a Supreme Court justice are as follows:
"We need somebody who's got the heart to recognize -- 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."Williams compares the job of being a justice to that of a football referee, and it's an interesting comparison:
The Pittsburgh Steelers have won six Super Bowl titles... By contrast, the Arizona Cardinals' last championship victory was in 1947 when they were based in Chicago. In anyone's book, this is a gross disparity. Should the referees have the empathy to understand what it's like to be a perennial loser and what would you think of a referee whose decisions were guided by his empathy? Suppose a referee, in the name of compensatory justice, stringently applied pass interference or roughing the passer violations against the Steelers and less stringently against the Cardinals.Is this an overly simplistic view? It sounds good on the surface, but as we'll see below, it may not be the most apt analogy.
WSJ on "The 'Empathy' NomineeAn editorial in the Wall St. Journal today examines Obama's pick, Sonia Sotomayor, saying he "appears to have found the ideal match for his view that personal experience and cultural identity are the better part of judicial wisdom. This isn't a jurisprudence that the Founders would recognize, but it is the creative view that has dominated the law schools since the 1970s and from which both the President and Judge Sotomayor emerged."
Later, the editorial says,
In a speech .. in 2002, Judge Sotomayor offered her own interpretation of this jurisprudence. "Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases," she declared. "I am . . . not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."Sotomayor explicitly rejects objectivity as possible or even desirable, and instead embraces, as WSJ calls it, "identity politics," which is simply another way to say multicultural subjectivity. WSJ presents a man like Scalia -- though he is no staunch defender of individual liberty -- as a "judge first," meaning he strives for some sort of objectivity rather than using his ethnic status as a guide to knowledge. In other words, reason before collective tribalism. Whether or not this is true for Scalia, the principle is correct.
...[E]ven more than her opinions, these words are a guide to Ms. Sotomayor's likely behavior on the High Court. She is a judge steeped in the legal school of identity politics. This is not the same as taking justifiable pride in being the first Puerto Rican-American nominated to the Court, as both she and the President did yesterday. Her personal and family stories are admirable. Italian-Americans also swelled at the achievement of Justice Antonin Scalia, as Jewish-Americans did at the nomination of Benjamin Cardozo.But these men saw themselves as judges first and ethnic representatives second. [bold added]
What ARE the Right Criteria?Tom Bowden at Voices for Reason sums up the issues quite well:
The Supreme Court has a solemn duty to interpret and apply the Constitution. That is an intellectual task requiring ruthless objectivity—which, contrary to Judge Sotomayor, is not an illusory “aspiration” but a requirement of justice. A conscientious judge strives to banish all emotional influences from the decision-making process. But here is Judge Sotomayor declaring herself helpless to resist—indeed, even welcoming—the influence of personal intuitions that cannot be grasped or shared by persons of another gender or ethnicity.Tara Smith, writing a commentary in the Houston Chronicle, fleshes this out by analyzing some of the clichés that are commonly used to attack sitting or potential justices. First, she addresses "judicial activism," which is thrown around from both sides of the aisle to attack any position different than one's own. She says,
While individual justices do occasionally step beyond their assigned role, it is important to recognize that activity per se is not the problem. For the alternative to the unjustified imposition of a judge’s personal values or policy preferences is not no activity on his part. Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment. [bold added]Smith then addresses the example of justice-as-referee. She says,
While this analogy captures part of the truth, it is incomplete and consequently misleading.Still, it seems like many Supreme Court decisions are as partisan and subjective as the laws they overturn or uphold. This is when members of the losing side decry "legislating from the bench!" But Smith raises the point of -- in my words -- the principle of garbage in, garbage out. She writes,
In sports, umpires do not have a say in what the rules are. They are given a complete set of rules at the start of each season and charged to call games accordingly. In the U.S. legal system, by contrast, courts are presented not only with the Constitution (the fundamental rules of the game, as it were), but with specific laws made by legislatures and by agencies of the executive branch (not to mention the court’s own precedents). The court’s responsibility is precisely to determine whether all of these purported laws are compatible with the Constitution, which is our ultimate legal standard. In other words, its role is to determine whether these are, in fact, valid law. In this specific sense, therefore, unlike the umpire in Fenway Park, justices do have a say in what the laws are. [bold added]
Consider some of the laws that courts are called upon to decipher...: prohibitions of “unfair” methods of competition, of “predatory” pricing,... and of a “hostile or offensive work environment;” ...the FCC’s ban on “indecency” on the airwaves in service to the “public interest” (which portions of the public? and which of their interests?). When the laws that judges are handed are written in such subjective, pliable language, is it any wonder that we find fault with some of their rulings?Smith ends by reminding us that a "just legal system demands objectivity in the substance of law as much as in the application of laws."
Legislators and executives, obsessed with the next election, are often so intent on appeasing all constituencies that they deliberately adopt evasive, elastic language, essentially punting tough choices in lawmaking to the courts (“Let the courts sort it out”). Much of the responsibility for the eventual court rulings that often strike us as judicial overreaching, in other words, actually stems from those who have irresponsibly crafted our laws and left courts in a “damned if they do, damned if they don’t” position. [bold added]
Ultimately, the right criteria for a nominee to the Supreme Court are (apart from native intelligence and the necessary education) objectivity, and a solemn respect for individual rights, the Constitution, and the rule of law. It's really pretty simple. That we are now presented with a potential justice who thinks her "Latina soul" is a better guide for jurisprudence than wisdom and reason, is merely a symptom of the wider abandonment of reason in our culture.