This column originally appeared on American Thinker on May 4, 2009.
Retiring Supreme Court Justice David H. Souter has handed President Barack Obama his first chance to nominate a judge to the nation’s highest court. Sand-blasting “Equal Justice Under Law” from the Courthouse should commence if the Senate confirms a nominee who matches Obama’s criteria for judges.
Souter advised Obama that he will be retiring from the Court at the completion of its term on June 30. Souter took the oath of office on October 9, 1990, swung left and never turned back. While Souter’s replacement won’t change the Court’s so-called “balance,” it will solidify it for years to come.
Souter is Obama’s kind of judge, as are Justices Ruth Bader Ginsberg and Stephen Breyer. Obama opposes the interpretive philosophies of justices Antonin Scalia and Clarence Thomas, which is also why Obama voted against confirming John Roberts as chief justice and Samuel Alito as associate justice. Obama doesn’t abide judges who apply the U.S. Constitution as the supreme law of the land without considering the ruminations of extra-territorial transnationalists.
Speaking of Souter, “Obama said he valued the ‘quality of empathy’ and was hopeful of finding a new justice who would reflect on people’s ‘hopes and struggles’ in the process of arriving at legal decisions.” Obama is searching for somebody who shares his “respect for constitutional values,” according to The Los Angeles Times.
Speculation abounds about possible nominees. Sounds like the empathy money should be on Oprah or Deepak Chopra, Obama devotees.
In his book, Audacity of Hope, Obama affirmed his belief that the Constitution “is not a static but rather a living document and must be read in the context of an ever-changing world.”
Think “Etch-a-Sketch.” Your “blessings of liberty” are subject to judicial re-write.
Obama told a Planned Parenthood conference on July 17, 2007, what he wants in a judge:
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.
Obama signaled Planned Parenthood that his judges would uphold abortion and its federal funding, despite Planned Parenthood’s targeting of minority communities for abortion. It claims “the need is greater” there.
That’s some empathy. You’d think that a sharp professor who “taught constitutional law for 10 years” would pick up on that racism thing.
Obama’s inconsistencies are alarming when you compare what he wants in judges with the oaths that federal judges are required to take. Senators have a constitutional duty to seriously evaluate from the record whether a nominee can be trusted to keep both before voting to confirm.
The first oath is to the Constitution. The Founders meant the one they signed and we the people ratified, not a version emanating from the nominee’s imagination. The oath is codified at 5 U.S.C. § 3331:
“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The great Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution of the United States:
“Nothing but the text itself was adopted by the people. … Contemporary construction is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those, by whom it was given, is the credit, to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.
Unlike Story, if the law isn’t “clear,” Obama wants a judge to “bring in his or her own perspectives, his ethics, his or her moral bearings” into consideration.” He wants a supra-legislator, not a judge.
Secondly, the Senate must consider the “judge’s oath,” codified at 28 U.S.C.§ 453:
“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”
Obama’s criteria for judges are exactly the opposite of the oath. Picture “Lady Justice” with no blindfold and a big thumb on the scale.
Justice John Marshall Harlan rejected the perversion of “Equal Justice” in his powerful dissent in Plessy v. Ferguson:
Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
If senators give their “advice and consent” without due regard to the nominee and these oaths, they may as well stop spending millions to preserve the Constitution housed at the National Archives, and, for the sake of consistency, appropriate funds to have the images of Moses scraped off the Court’s building. Those images are a pesky reminder of the right standard for selecting judges:
Appoint judges and officials for each of your tribes in every town the LORD your God is giving you, and they shall judge the people fairly. Do not pervert justice or show partiality. Do not accept a bribe, for a bribe blinds the eyes of the wise and twists the words of the righteous. Follow justice and justice alone, so that you may live and possess the land the LORD your God is giving you. Deuteronomy 16:18-20 New International Version
It would be a bribe of supreme proportion to take an oath with crossed fingers in order to obtain a seat on the Supreme Court. The injustice could be surpassed only by a Senate that fails to stop it.