 |
||||||
|
|
||||||
November 4, 2008
Obama Will Use Courts to Spread the Wealth
Private Papers
We now know that Obama thinks that Joe the Plumber should spread the wealth but what Obama did not say to Joe is that he will also employ the courts to achieve this end result. In interviews about his judicial selection criteria, Obama has repeatedly described worthy judges as demonstrating one predominant quality: empathy. In other words, he will seat judges according to their ability to feel, first, and the ability to think like a judge will be secondary. While Obama says that Joe the Plumber should be asked to help the guy in line behind him, Obama is telling voters that he will select judges according to how much sympathy they have for those at the back of the line.
Empathy as the ability to experience the feelings, thoughts, or attitudes of another is relative to human conditions, historical timing, and social trends; it is a responsive condition and not an objective standard. The pursuit of a judicial philosophy centered on empathy would subvert the constitutional principles of ordered liberty, unalienable rights and blind justice.
When Obama says that he will look for judges that will focus on a desired result he seeks those that will pursue a prescribed sense of fairness. But our legal system was not constructed on principles of fairness. Rather our system of justice exists to apply a rule of laws so that those who have consented to be governed by those laws can know what is expected. Fairness, if such is what the people wish to achieve, and the creation of the laws is up to the legislature.
For this reason, Alexander Hamilton warned in Federalist Paper 78, against judges substituting their own beliefs for constitutional intent: “The Courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body.'' This warning that the law must prevail over preferred personal outcomes is in stark contrast to Obama’s declaration that in controversial cases the “critical ingredient is supplied by what is in the judge’s heart.”
During his confirmation hearing, Chief Justice John Roberts likened the role of a judge to that of an umpire saying, “My job is to call the balls and strikes, and not to pitch or bat,” he said. “It is a limited role.” Obama countered Roberts’ minimalist view this way: “Justice Roberts said he saw himself just as an umpire, [b]ut we need somebody who’s got the empathy to recognize that the rules may need to be different for some people.”
Results-driven judges throw our judicial system completely off track. Our courts follow a common law heritage of previous rulings and rationale: a doctrine called stare decisis, established over many years and long lines of cases. These rulings create jurisprudential roadmaps to guide the next decision. When emotion and subjectivity tweak the outcome, subsequent cases are cut adrift from legal underpinnings.
Consider the outrageous Kelo Supreme Court ruling where private property was taken for corporate benefit. This flawed interpretation of the 5th Amendment’s Takings Clause altered the original constitutional instruction that private property could be taken by government only for “public use” and resulted in a rule that property could be taken from a private individual for a “public purpose.” It is not a stretch to now predict that an empathetic Obama-selected judge would consider a low-income housing project as being a worthy public purpose in the taking of another’s private property. This would only fulfill Obama’s belief that the historical role of the Supreme Court is “protection of the powerless and the vulnerable.”
When redistributionists and those with an agenda so far out of the mainstream as to be repudiated at the ballot box fail in the legislatures, they have taken their cause to the courts. Obama’s campaign has acknowledged that he will employ the courts to “stand up for social and economic justice.” According to his own admission, we can expect Obama to fill the courts with judges who will rule with their hearts over their heads and will impose a popular sense of fairness at the expense of American traditions of deliberative justice and separation of powers.