Quin Hillyer makes some noteworthy points here about President Obama’s approach to Supreme Court nominees. It’s now gone beyond the so-called “living Constitution” to a justice who will rule by a “seat of your pants” mentality. Hillyer writes:
To review, here is exactly what Obama said about how he will choose a nominee: “I will seek somebody with a sharp and independent mind, and a record of excellence and integrity,” he said. “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”
As many others have been arguing all week, that statement is wrongheaded on so many levels that one barely knows where to start in opposing it. At the most basic level, Obama misidentifies the role of the Supreme Court: As Oliver Wendell Holmes, Jr., once famously said, the court’s job is not to “do justice,” but to uphold the law. At the level of the high court, any member of the court who tries to mold decisions to best “affect the daily realities of people’s lives” and of “identifying with people’s hopes and struggles” is directly contravening his own oath of office to see that the Constitution and laws are faithfully executed.
Uncommon Knowledge has an excellent interview with Justice Scalia here. Part of it deals with the question of ruling based on the law versus intuition.
