Justice David Souter is retiring from the United States Supreme Court later this year. His vacancy will be filled with by presidential appointment, approved by the U. S. Senate. President Obama has promised to select an appointee who has empathy for Americans and will be guided by that empathy in his or her rulings. His statement was praised by members of Congress who are looking forward to more diversity and compassion on the highest court in the land.
Here is where I and "members of Congress" part ways. The United States is a republic. In a republic, you elect people to represent your views and needs in government. The legislative branch, Congress, writes and passes the laws. The executive branch, headed by the president, enforces the laws. In both branches, compassion and empathy for the public is expected and required; and if it is absent, the public has the opportunity every few years to completely replace every sitting member of both branches.
The judicial branch, though, is the one branch where compassion and empathy only hinder the performance of duty. In the halls of the Supreme Court, everything is black and white. Either a law passed by Congress is unconstitutional, or it isn't. Either the president, in the course of his duties, has violated the Constitution, or he hasn't. Personal feelings or ideology have no place in determining whether the Constitution has or has not been violated.
The issue was illustrated in an episode of "The West Wing" in which the president, interviewing a candidate for the Supreme Court, asked if he would have any objection to a state banning the use of cream in coffee. The candidate replied, "I would have strong objection, as I like cream in my coffee ... but I would have no constitutional basis for striking down the law." That, I felt, summed up the issue rather neatly. Justices cannot rely on anything other than their understanding of the law when they rule on a case.
We've all seen the lawyer shows where the attorney stands up at the end and makes a passionate appeal to the jury's feelings, pleading for the client's freedom and sometimes his life. What we do not see is what happens in a real courtroom: after the attorney sits down, the judge instructs the jury to decide only whether or not the law has been broken. Lawyers prefer jury trials because they can appeal to the emotions of ordinary people whose lives have not been spent rigidly observing the law. They cannot count on a judge to ignore the law in favor of emotion. Hopefully, no one of us will ever be able to count on that, either.
This is a diverse nation. It is also, I feel, a compassionate one. That diversity and compassion should be reflected in our elected officers. In our judges, though, only one thing should be reflected: the rule of law.
Here is a copy of a letter that I sent to both of my state's senators, who will share responsibility with the rest of the U. S. Senate for confirming Supreme Court nominees (I sent a similar letter to President Obama:
After Justice Souter confirmed that he will retire this year, President Obama promised to nominate a justice with "empathy and compassion" for the average American; someone with "real life" experience, who has seen how these laws directly affect people's lives. While I feel those are admirable qualities for an elected official such as a senator or even a president to have, I do not feel it is something a Supreme Court justice should have.
Senator, the judicial branch is the one branch of the three that calls for a lack of personal philosophy or ideology when making decisions. As I'm sure you're aware, a justice's responsibility is to adhere to the United States Constitution when ruling on a particular case. The experiences and emotions of the people involved would only cloud the issues. For justices and judges, the rule of law is the only consideration.
Another point, Senator, was raised during the appointment of Harold Koh to the position of legal adviser to the State Department. Mr. Koh's views and his embrace of international and "transnational" laws raised concerns that he would advise the Secretary of State in ways that would favor international law above the laws of our own nation. When news of Justice Souter's retirement broke, Mr. Koh was mentioned as a possible candidate to replace him. Senator, nothing would anger me more than to have a justice on the Supreme Court who favored the laws of other nations above our own.
The principle I mean to impart, Senator, is one against so-called judicial activism. Justices and judges are charged with protecting the Constitution and the rule of law against legislators and executives whose actions would violate that law. Sympathy and empathy are important in writing and enforcing the law; not in ruling on it.
I would appreciate, Senator, a pledge from you to only support a candidate for the highest court in our land who will focus on the law as it is written, not as it "should" be written.
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