When Good News is Bad News

The good news: David Souter is leaving the SCOTUS. The bad news: Barack Obama is choosing his replacement. The worse news: he has a rubber stamp Senate to confirm her. I’m predicting the same as everyone else. He will choose an woman from an ethnic minority. Or as even liberal Time magazine says, “White men need not apply.”

I don’t care whether care whether the new justice is a man or a woman. I don’t care what their ethnic background is. What I do care about is the box-ticking exercise of thinking this is important. On one level care about the affirmative action approach to filling one of the nine most important judicial seats in the land. That is a very poor crtieria.

But the much more important thing it that it reflects a much more troubling aspect of Obama’s judicial philosophy.  “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” This sounds so wonderful and heartwarming.

We need someone who will bend and change the law to make people happy. We need unelected judges to override elected legislators in making law. We need to change the meaning of the Constitution because we feel sorry for people.  If we get a cultural and gender cross-section on the Court, they can represent the people in choosing what the Constitution should become – more white men are more likely to tell us what it is.

If the law cannot be changed on a case-by-case basis, then we are stuck with equality under the law. That makes it much more difficult to favour minorities or special interest groups, especially ones we for whom we feel sorry because we don’t think they have been as materially prosperous. Enlightened justices needs to protect and promote behaviour that legislators, encumbered as they are by the will of the people, won’t endorse.

I want to say in closing that I don’t have anything against David Souter personally. I am very disappointed that he has shifted from the conservative to liberal side of the Court. That’s why I wish I could be glad to see him go. As an individual, he has always been an outstanding example of public service.