EMPATHY VERSUS THE LAW
June 7, 2009
Justice David Shouter's retirement from the US Supreme Court presented President Obama with his first opportunity to appoint someone to the High Court. And he did just that... Judge Sonia Sotomayor, a federal appeals court judge for New York's Second Circuit, is the President's choice. President Obama has made "empathy" one of his criteria for choosing a Supreme Court nominee. This criterion however was never in the "mind set" of our Founding Fathers and for good reason. Using empathy as a prime rationale for selection may very well push the Court toward more arbitrary judicial edicts thus advancing a particular "questionable" agenda into legal concrete and bring about immunity from the democratic process.
The undergirding purpose of the American judiciary is to strictly interpret the laws of the land in light of their constitutionality. This underlying function is vital to the maintenance of our Republic and to sustain the blessings of liberty to ourselves and our posterity.
As we see it, the US Constitution is the client of the US Supreme Court. Alexander Hamilton said it well "A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." The Constitution of the United States created a representative republic in which "We, the People" decide issues and enacts laws through our elected representatives. However, in recent past decades, the Supreme Court had treated the Constitution like a blank check, in which they could write their own views on several decidedly controversial items. It has been said that thrashing the Constitution is tantamount to torturing this legal document and thus torturing "We the people."
Members of the Supreme Court are nominated by the President and approved by the US Senate. At the heart of the judicial nomination and approval process is the judicial role of the US Supreme Court as perceived by members of the United States Senate.
We believe that judicial philosophy should serve as the ultimate guide to a Presidential nomination to the US Senate. It is not about whether the nominee will advance a social policy agenda but rather it is about one who will stand with the original intent of the Constitution. Chief Justice John G. Roberts pointed it out well when he articulated the concept that the court system is not a forum to remedy social problems, but rather, to strictly interpret the law in the light of its constitutionality. The Supreme Court legally protects the Constitution much as an attorney protects a client. The purpose of the Court is not to write laws for the Congress when that body is unable to secure the necessary votes to pass the legislation.
It is true, we hear much about the term "activism" vs. "restraint" and looking at the Constitution as a "living document" vs. focusing on "original intent." As we see it, the Constitution is a product of the "wisdom of the ages"; it is that document which serves as the basis on which our Country was founded. The Constitution is the law of the land. The only uncertainty we have today is how it might be applied in untested situations and settings.
Most important in all of this is a judge's view on the significance of the Constitution. Many modern judges, including Associate Supreme Court Justice Anthony Kennedy cite international law as a basis for a decision. In our view this is reprehensible. It is very clear in the Constitution that our sovereignty Ii is critical to our legal system and MUST NOT be subject to the whims of transient global opinion. Not only is this reprehensible, but to cite precedent is a violation of the judges' very oath of office. Our Constitution was designed as a sovereign document which held certain and specific values which must come from within. To impose external views on domestic laws is not law. Law is the overarching conscience of a people within a national boundary.
The idea that conservative judges will vote for conservative policies and liberal judges for liberal policies is the antithesis of what a judge is supposed to do. In reality, what Senators and the country are entitled to know when selecting a justice on the Supreme Court is how a judicial nominee regards his or her duty to respect the US Constitution as the foundation of law. It is shortsighted that one would probe, as we have recently seen, to extract from the nominee his or her personal views on particular matters which hypothetically may come before the Court. As a judge, one leaves his personal views at the door, such that all cases are ruled on constitutionally within the framework of facts, and nothing less.
Supreme Court Nominee Samuel Alito brilliantly stated his view when he categorically stated "Judges don't have the authority to change the Constitution. The Constitution is an enduring document and the Constitution doesn't change." Judge Alito went on to say "A judge cannot have any agenda, a judge cannot have any preferred outcome in any particular case. The judge's only obligation-and it's solemn obligation-is to the rule of law. There is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law." What a significant, powerful, and profound statement!
Judges take an oath to uphold the Constitution. Respect for the separation of powers should apply to all three branches of government. To extort a pledge from a judicial nominee or a potential nominee to vote in a particular way on matters or cases one has not heard, is contrary to the very soundness of our legal system and violates the highest principles of jurisprudence, feelings of empathy not withstanding. And this should be a matter of concern to all who respect the Constitution, the rule of law and the great traditions and precedents of our legal system. The Judiciary...to JUDGE the law based upon the Constitution or to WRITE the law based upon empathy?
Walter Lippmann, an influential journalist, scholar and political commentator in the 1940's-1960's wisely stated "Very few established institutions, governments and constitutions... are ever destroyed by their enemies until they have been corrupted and weakened by their friends", his advice is worth heeding. And we add, when there is fear of government there is tyranny; when government fears the people, there is liberty. And that is how we see it FROM OUR PERSPECTIVE.