Stephen Bainbridge notes that Sen. Obama doesn’t exactly get it when it comes to the rule of law. The basic principle at stake here is this: judges are supposed to say what the law is, not what they think it ought to be. The function of a judge is not to act as a legislator who gets to change social policy based on their own values, but as an adjudicator. Chief Justice Roberts put it best during his confirmation hearings:
“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts. “I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”
Sen. Obama does not apparently share that view. Here’s what he said about the type of judge he would nominate:
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.
That’s precisely the wrong way to pick a judge. There is a reason why the statutes of Lady Justice has her wearing a blindfold—the law should not discriminate based on how sympathetic a defendant or a plaintiff is. It is not the position of a judge to decide that someone should be treated differently under the law merely because of the color of their skin or their social disposition. We are nation of laws, not of men. The law applies equally to all, and should not be subjugated to social whim, no matter how well-intentioned.
The problem that Sen. Obama has is that he really should know better. He knows what upholding the rule of law is about. His remarks on the nomination of Chief Justice Roberts show his two-faced approach to the law. He begins by saying this of Chief Justice Roberts:
There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.
This is exactly the way one should evaluate a judge. A judge should be respectful of precedent (if not inflexibly respectful), modest in the course of statutory interpretation, respect procedure, and be impartial. By these criteria, there is no question that Chief Justice Roberts is quite deserving of his seat on the highest bench in the land.
Of course, Sen. Obama didn’t vote for Chief Justice Roberts when his nomination was brought to the floor of the Senate. His reasoning why betrays his fundamental misunderstanding of the rule of law:
The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of 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.
This could not be more wrong, but to give Sen. Obama a fairer hearing, let us examine his deeper justification for this position:
On those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
On the surface, this seems perfectly reasonable: after all, we don’t want our judges to be heartless, do we? Yet this country is a nation of laws, not of men. What Sen. Obama wants in a judge is a judge that will take his or her own personal feelings as the deciding factor in a case. This is not following the rule of law, this is an example of a judge discarding the law and becoming something other than a neutral arbiter. This inevitably creates an imperial judiciary in which our government ultimately comes down to the personal feelings of 9 individuals rather than democratic process. This sort of attitude is deeply corrosive to the rule of law in this country.
It is not the job of the judiciary to judge based on their feelings. It is an invitation to judicial arrogance. There is a reason why affirmative action is offensive to the Constition—it is because the Constitution was not designed to allow for government to discriminate on the basis of race and is why the Bakke line of cases are wrong as a matter of law. The Constitution does not create a right of privacy in terms of reproductive rights. Roe struck down the laws of 30 states, yet nowhere in Roe is their any clue as to what part of the Constitution these statutes actually offended. Roe is wrong as a matter of law. The Commerce Clause was never designed to allow the federal government to sweepingly regulate anything even “tangentially related” to interstate commerce—unless you forget that the Tenth Amendment says the exact opposite. The Court in Darby Lumber declared the Tenth Amendment to be a mere “truism” that had little force of law. The Court in their more recent Commerce Clause jurisprudence got it right. Cases like Lopez and Morrison got it right as a matter of law—the Commerce Clause does not grant the federal government the power to regulate any activity even if it has even the most tenuous link to interstate commerce. To accept the rule that Sen. Obama would lay down would be to destroy the very notion of federalism, as there’s practically no activity which could then not be regulated by the states.
If Sen. Obama thinks that these conclusions are wrong, then the judges he nominates should come to a legal reason why these conclusions are wrong and these precedents should or should not be followed. The question should not be answered by stating that the judge simply doesn’t like the answer and is personally motivated to do other than what the law commands.
The “critical ingredient” is not what’s in a judge’s heart, but what is in their head. A judge cannot simply say that because a statute may be ambiguous that they can then reject the rule of law and decide the case based on whatever they want. A judge must have the modesty to accept that it is the Congress, not the judiciary, that makes law in this country, and if Congress comes to answer that a judge doesn’t like, then Congress must fix it. A judge that decides that they want to shape the law based around their whim has failed their first duty as a judge and is no longer a neutral arbiter, but has become a party to the litigation. When that happens, equal justice under the law has been denied.
Sen. Obama could not be more wrong on what makes a good judge. He would subjugate the rule of law to the whim of judges. A former professor of Constitutional Law should be far more circumspect. A judge may rely on precedent, tradition, the common law, public policy and a whole host of other considerations in coming to a legal conclusion. However, the second we start letting judges interject their own “hearts” into the issue is the second we abandon the our democratic values in favor of the Imperial Judiciary. Sen. Obama is simply wrong.