January 22, 2009

Holder & Obama Differ on Judges

If confirmed, Attorney General nominee Eric Holder will head a department which plays a huge role in the selection of federal judges, a role matched only by the White House itself. Thus we read with much interest Holder’s responses, submitted yesterday, to written questions from Sen. Arlen Specter concerning the proper role of judges. Based on Mr. Holder’s responses and previous statements by Barack Obama, it appears that Holder does not endorse the type of activist judicial philosophy espoused by Obama.

Consider this written exchange:
Specter: “Do you think that it’s ever proper for judges to indulge their own policy preferences in determining what the law means?”
Holder: “No. Judges should decide cases based on the facts presented and the applicable law.”
We agree, but President Obama thinks differently. He has said that difficult cases
“can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.”
Values, concerns, and broader perspectives – in other words, policy preferences. Plus a dose of empathy for some of the litigants.

But Obama and Holder disagree on the role that should be played by a judge’s empathy for the parties before him. Obama goes on to emphasize that, in the difficult cases, “the critical ingredient is supplied by what is in the judge's heart.” And on another occasion, Obama said that his “criteria” for selecting judges would be
“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.”
What about empathy for unborn babies or for poor white kids denied college admission because of affirmative action policies? The point is that it’s not clear that empathy-based judging is anything more than politics in disguise. But give Obama credit. He’s been unusually straight forward and consistent in saying that judges should look to their hearts. In light of that, Specter specifically asked Holder “Do you think that it’s ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?” Here’s Holder’s written response:
“It is important for judges, as for all public servants, to bring to their jobs an ability to understand the life experiences of the people who appear before them, but judges should make their decisions based only on the facts presented and the applicable law.” (emphasis added)
No one can dispute the first part of Holder’s answer. But in the second half, Holder rejects the notion that judges should consider empathy in addition to the facts and law.

Should a judge look to his heart and policy preferences when deciding cases? Holder and Obama appear to sharply disagree. We hope that Holder’s view wins out. But either way, before any judicial nominees are announced, the two men should clarify which of their very different philosophies on judging will govern the evaluation and selection of judicial candidates. They owe it to the nation and to the senators who must decide whether to confirm President Obama’s nominees.

If the Obama Administration plans to appoint judges who are personally liberal but committed to deciding cases based solely on the facts and law, there will be smooth sailing in the Senate for Obama’s nominees. On the other hand, if the nominees will be men and women who look to themselves rather than the law, senators need to get ready for a big fight over judges.

Finally, a Washington Post editorial lamented yesterday that Senate Democrats “at times engaged in unjustified filibusters and gross distortions of some [judicial] nominees' records” during the Bush Administration. The Post specifically called Democrats out for the “flimsy” excuses used to block the nominations of Miguel Estrada and Peter Keisler to the D.C. Circuit, and acknowledged that “[t]he real reason for opposition” to Estrada is that he “was seen as a top contender to become the first Hispanic Supreme Court justice.”

We applaud the Washington Post for seeing through Democrats’ flimsy excuses. But we wish the Post had gone one step further and reminded President Obama that he can remedy the deplorable treatment of Keisler and Estrada by appointing them to the two vacant seats on the D.C. Circuit. If Obama were to follow the tradition set by George W. Bush – who appointed two Clinton nominees to the circuit courts in his first year as president – it would be powerful statement that the new president is sincere about transcending the partisan politics of the past. For more on this possibility, see here.