Wednesday, May 7, 2008
I'm probably not the best person to defend Barack Obama's view of judges, since I'm also troubled by various comments he's made over the last few months, but maybe his view is not as egregious as it seems. We can't forget that President Bush's best defense of Harriet Miers' qualification for the Supreme Court was his knowledge of her "heart." (OK, given how that episode turned out, maybe that's a bad example.)
Obama has suggested that, in his view, 95% of Supreme Court cases can be decided strictly by intellect, but 5% require us to look into a justice's heart, to "their broader vision of what America should be." Is this notion all that controversial anymore? Take the jurisprudence of Clarence Thomas, for example. It seems obvious that his experience as an African American shapes his view of affirmative action and school desegregation cases, and he gives voice to those views in a way that appears to defy the boundaries of the sterile "umpire" role espoused by Chief Justice Roberts. Is it wrong for Justice Thomas to do so? Is it even possible for him (and other judges) not to see their cases through the lenses of their own life experiences?
To be sure, the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic. But I don't think Obama's comments justify a conclusion that he stands for that extreme position. Read most charitably, perhaps he's just bringing the inescapable human dimension of judging to the surface of our political discourse. Should Catholic legal theorists resist that acknowledgment? After all, if we could create nine robots who were programmed to apply a textualist theory of constitutional interpretation, we'd have to come to grips with rolling back not only Griswold and Roe, but also Brown, Meyer and Pierce, for example. Don't all of these cases require judges to stand up for "social justice?" Isn't a significant part of the judicial battle about what "social justice" entails?
Put simply, do we disagree with Obama because he is wrong, or because he is airing a truth that we don't like to acknowledge?