NRL News
Page 2
April 2009
Volume 36
Issue 5

Souter to Retire; Obama Emphasizes “Empathy” in Replacement
By Dave Andrusko

“Should the judge be an umpire or an empathizer?”
     From “Behind Justice’s Blindfold,” by Ruth Marcus, Washington Post, May 6

“Overruling Roe’s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. Where the Court acts to resolve the sort of unique, intensely divisive controversy reflected in Roe, its decision has a dimension not present in normal cases, and is entitled to rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country’s loss of confidence in the Judiciary would be underscored by condemnation for the Court’s failure to keep faith with those who support the decision at a cost to themselves. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.”
     From Planned Parenthood v. Casey. Retiring Supreme Court Justice David Souter read this section aloud when the Court handed down its 1992 decision upholding the “core tenets” of Roe.

Writing on the Post’s op-ed page, Ruth Marcus was referring, of course, to the winks and nods coming from pro-abortion President Barack Obama as he talked about finding retiring Supreme Court justice David Souter’s replacement. When Obama furrowed his brow to emphasize the need for “empathy (and understanding),” these are not mere wrinkles we see but deeply embedded creases, the product of constant repetition and (of course) utter sincerity. Obama wants his judicial nominees to empathize with those who have the impossible task of defending the intellectually bedraggled Roe v. Wade decision and to understand that nothing is more important than its preservation.

When Obama completed his first 100 days in office, the way pro-abortionists gushed, it was like a teenager’s first crush. “For those in favor of women’s rights,” swooned one, “the first 100 days of the Obama administration has been like a honeymoon. We’ve continually been reminded why we fell in love in the first place.”

But they had plenty to be giddy about. As the illuminating overview on page 5 makes clear, Obama has installed his pro-abortion soulmates in key positions, gutted pro-life policies such as the Mexico City Policy, signaled unmistakably that he agrees with Planned Parenthood’s Cecile Richards that “health care reform is going to provide a platform” for providing “access to the full range of health care options,” left the door wide open to federal funding of research that creates human embryos for the sole purpose of becoming research fodder, and, with respect to the right of physicians to followed their consciences, launched a shot across the bow.

Obama was so eager to talk about the High Court vacancy that he interrupted the daily press briefing to confirm what had been rumored all day. Pro-abortion  Justice Souter would be leaving this summer after nearly two decades on the Supreme Court.

Obama told reporters, “It is my hope that we can swear in our new Supreme Court justice in time for him or her to be seated by the first Monday in October.” There had already been, of course, much speculation as to whom Obama will nominate to replace Souter.

The issue is not whether Obama will select a reliably pro-abortion justice. It is whether he (or more likely she) has a paper trail on the issue—as Souter did not—and how boldly the nominee champions his or her pro-abortion views.

When asked during the campaign what kind of kind of justice he would nominate, Obama offered warm and fuzzy stuff which was (and is) at odds with the public’s view of what a Supreme Court Justice should be.

“What matters at the Supreme Court is those 5% of cases that are truly difficult,” Obama said. “In those cases, adherence to precedent and rules of construction will only get you through 25 miles 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. In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

This is the Dr. Phil approach to constitutional jurisprudence. This is decidedly not the view shared by the American people.

Last November, The Polling Company asked voters if they prefer a President to nominate Justices to the Supreme Court and judges to the federal courts who “will interpret and apply the law as it is written and not take into account their own viewpoints and experiences” or “take into account their own viewpoints and experiences” in deciding cases. By more than a 3–1 margin (70% to 22%) they expressed support for judicial restraint. Interestingly, this included 79% of Republicans, 64% of unaffiliated voters, and 52% of Democrats.

A Rasmussen poll conducted earlier this year found that 64% of respondents said U.S. Supreme Court decisions should be based upon what is actually written in the Constitution. But only 35% believe Mr. Obama agrees with them.

The American people are more closely aligned with Chief Justice John Roberts, who during his confirmation hearings (as Marcus put it dismissively) “likened the judge to a baseball umpire, dispassionately applying existing rules to call balls and strikes.”

There was nothing “dispassionate” about Souter in the Casey decision. I remember how astonished I was at the time, not by the outcome (substituting a more elastic standard to support abortion than the rigid Roe trimester framework), but the astonishingly heads-I-win-tails-you-lose logic the three pivotal justices used to justify their conclusion.

As you can see from the Souter quote that begins this editorial, even if you conceded (as Souter did not) that the Court had bungled Roe and subsequent abortion rulings, if justices acknowledge their errors the rule of law is toast and the Court’s “legitimacy” is threatened.

The late Chief Justice William Rehnquist and Justice Antonin Scalia pounced on the suggestion found in the joint opinion that (as Rehnquist put it) “the propriety of overruling a ‘divisive’ decision depends in part on whether ‘most people’ would now agree that it should be overruled.” In fact, the Court’s legitimacy comes, as Rehnquist observed, “not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”

The media’s love fest with Obama was matched for a time by its embrace of the “quiet man” from New Hampshire. Souter lives a virtual hermit’s existence, eschewing virtually all modern technologies, writing his opinions in long-hand, and staying as far away from Washington, D.C. as possible, when the Court is not in session.

Nothing wrong with that. But could you imagine what the Media Establishment would have done with a man who can charitably be called quirky, had his opinions on abortion not been reliable?

Somehow—just guessing now—I don’t think the Washington Post and the New York Times would have been quite so fawning.