February 28, 2008

Obama’s Judges Would Lead With Their Hearts

In his latest column, Terence Jeffrey worries that
“If Obama becomes president, he will try to stack the court not with umpires, but with players who put their heart in every game – consistently pitching and batting for Obama's favorite teams.”
Jeffrey’s concern stems from Obama’s remarks during the Roberts and Alito confirmation debates. As Jeffrey describes it, Obama argued that “the role of a justice is to favor the ‘weak’ over the ‘strong’ ” and that, in the most difficult cases,
“the determining factor is not what the law in question says, or what the Constitution says. … ‘In those difficult cases,’ Obama said, ‘the critical ingredient is supplied by what is in the judge's heart.’ Roberts and Alito were bad judges, he decided, because their hearts weren't in the right place.”
Jeffrey goes too far in asserting that Obama “wants a Supreme Court that wages class war under color of law.” But it is hard to deny that
“In contrast to his soaring campaign rhetoric about bringing America together, Obama's Senate speeches against Roberts and Alito revealed a polarizing vision of America. Minorities, women, employees and criminal defendants were among the weak; majorities, men, employers and prosecutors were among the strong.”
Nonetheless, if you are not a judicial conservative, you may be asking what’s wrong with judges protecting the weak from the strong? Well, for one thing, identification of “the weak” is very much in the eye of the beholder. We’re guessing that Barack Obama does not want judges to favor gun owners, unborn babies, white men challenging employers’ racial preferences, or property owners threatened by environmental regulations, no matter how much power they’re up against.

Moreover, the Constitution and the laws enacted by our elected representatives already contain many protections for criminal defendants, employees, minorities, women, and the like. The job of a judge is to dispassionately apply these constitutional and statutory protections, not to second guess their authors. That’s not to say that a good judge succeeds at being completely dispassionate in every case. But it is only the Left that wants to enshrine “what is in the judge's heart” as a “critical ingredient” in the law, to quote Barack Obama.

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