Notes From Babel

Obama Will Replace Souter With Someone Who Cares About The Rule Of Law? Don’t Count On It

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Faced with the unexpected delight of appointing his first Supreme Court justice, Obama has said that he will seek to fill Souter’s seat with some one “dedicated to the rule of law.” And yet then he went on to give these remarks, suggesting he will appoint someone who understands that “justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives.” The NY Times reports:

[M]ore than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions.

. . . .

Though Mr. Obama rarely spoke of his own views, students say they sensed his disdain for formalism, the idea — often espoused by Justices Scalia and Clarence Thomas, but sometimes by liberals as well — that law can be decided independent of the political and social context in which it is applied.

. . . .

Former students say that Mr. Obama does not particularly prize consistency or broad principle. . . .

This all seems to be consistent with what he warned us of during his candidacy:

[I]n the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsb[u]rg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

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Written by Tim Kowal

May 3, 2009 at 5:23 am

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