Senator Obama was not happy with the Supreme Court’s recent decision upholding a ban on partial birth abortions. According to him we need as Supreme Court justices people who have empathy:

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'm going to be selecting my judges.

Right. What we don’t need is somebody who’s got the brains, the intelligence, to recognize law when he sees it. The rationality to know how to read the law and apply it without passion or prejudice (or at least as close thereto as possible).

I would agree that there ought to be empathy embodied in the law. But I think the proper place for that is in it’s legislation and execution. In other words, it makes perfect sense if (in addition – God, please hear me! – to rationality) legislators and executives “recognize what it's like to be a young teenage mom… [and have] the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.”

But once those people get done crafting and signing into law, judges ought to leave it alone. Just apply it. It isn’t (always) that difficult (hard cases not withstanding). At least it isn’t as difficult as they seem bent on making it.

On the plus side, maybe we’ll see the influence on the law of lawyers diminish. If it’s “heart” and “empathy” we want then we don’t really need law school graduates on the Court. Any liberal will do, as Justice Breyer, albeit a lawyer, demonstrates so very well. I mean, it doesn’t take a lawyer to prefer some provision of the laws of Bitch-and-gripe-istan to his own constitution. Your average teenager can apply the law of another jurisdiction quite well. Observe: But at Johnny’s house they watch porn all the time, Mom” or “But Linda’s Mom let’s her go topless at the beach!”

See? So easy even a teenager can do it.

It also doesn’t take much of a lawyer to understand the oracular babblings of a “living, breathing document.” (For that matter it doesn’t take a lawyer to believe in a living, breathing document!) Muff Potter (the town drunk in Tom Sawyer) could do as well. He was a pretty empathetic guy. Or Phil Donahue; he has empathy.

When you think about it, a President Obama will probably nominate John Edwards to the Court. Edwards has svengali empathy. But I digress.

Ultimately, what Senator Obama is promising is lawless judges on the highest court in the nation. All the talk of empathy and heart is a cover for lawlessness, a shield behind which a judge can hide the fact that he is not bound by the law that governs the rest of us. The Supreme Court is the only element of the federal government which flaunts its lawlessness with impunity. Federal district courts are bound by decisions of their respective appellate courts. These courts in turn are bound by decisions of the Supreme Court. And the Supreme Court is bound by nothing, really. (Oh, sure. There’s the amendment process. But let’s be for real here.)

The Court has used “trends” (e.g., Roper v Simmons) and foreign law (e.g., Lawrence v. Texas) to reach some of its decisions in recent years. At least in a decision like Roe, the Court still recognized the need of at least pretending to craft an opinion derived from Constitutional exegesis. No longer.

Senator Obama has told us something about what he thinks about the nature of justice, the equal application of the law. The ideal, however short any have fallen, is that justice is blind. The law says what it says; and what it says is applicable to poor, African-American, gay, disabled, or old equally and alike. Of what possible relevance can economic condition, ethnicity, sexual orientation, physical condition or age be to a judge who will simply apply the law? These things can only be of relevance if the judge is to set aside the law based on those characteristics. That would be lamentable. That is, if justice is blind, or ought to be.

On Obama’s view justice depends upon economic condition, ethnicity, sexual orientation, physical condition or age. The Court thought that the question before it was whether the ban violated some provision of Constitutional law. The good senator believes that the question before the Court has something to do with someone’s economic condition, ethnicity, sexual orientation, physical condition or age. The law, apparently, is irrelevant. Or perhaps he believes that the law, though instructive, is not binding.

As long as Senator Obama has made clear his preference for lawless judges, he ought to lead his party in ceasing to prate about the President’s own Constitutional lawlessness. The President may be lawless, but at least we have the opportunity every four years of replacing him. This is not the case with the Court. And as long as Leftists are willing to accept a lawless Court, they may as well accustom themselves to a lawless executive. They are already quite obviously comfortable with the idea of a lawless legislature.

Senator Obama, as a Christian, may like to know that God, in addition to requiring that executives obey the law (see Deuteronomy 17.18—20), also requires that judges not pervert justice. In fact, on the subject of the poor, and judges, the Bible says: “You shall not show partiality to a poor man in his dispute” (Exodus 23.3). A judge may very well empathize with the poor man. But the poor man’s poverty has nothing to do with whether the facts support his case. The judge cannot find for the plaintiff just because the plaintiff is poor. The same is true of the plaintiff’s ethnicity, age, and sexual orientation, because the Scriptures elsewhere state: “You shall not pervert justice; you shall not show partiality, nor take a bribe, for a bribe blinds the eyes of the wise and twists the words of the righteous” (Deuteronomy 16.19, emphasis mine, of course).

H/T: Althouse

P. S.

I’m not naïve. I know very well that the ideal of justice as blind cannot be achieved perfectly. But I do think that the choice is between the attempt on one hand and abject lawlessness on the other. Men may not perfectly love their wives; mine prefers one who tries and occasionally fails to one who, concluding that he cannot do so perfectly, shrugs his shoulders and doesn’t try at all. Obama, and others like him, have seemed to me to be saying, “We cannot perfectly apply the law without passion or prejudice, so let’s have passion and prejudice. But let’s just have passion for the ‘right’ people; let’s have the ‘right’ prejudices.”