The judicial empathy standard

Guy Benson:

John McCain delivered an important speech at Wake Forrest on Tuesday, but how many Americans even heard about it? Much of the media was too busy obsessing over the latest twist in the Democratic primary to pay McCain's remarks much attention. As the press breathlessly declared Hillary Clinton's demise (again) and wildly celebrated—er, objectively reported—Barack Obama's solid win in North Carolina, conservatives were showering McCain with positive reviews on a crucial issue: The federal judiciary. Republicans who remain unsold on McCain should take heed.

My friend Hugh Hewitt likes to quip that there are seven reasons to embrace John McCain—the war, and six Supreme Court justices over the age of 68. The line often gets a laugh, but it's no joke. Stemming the tide of judicial activism, which systematically strips the American public of its right to decide policy issues at the ballot box, is an urgent priority. The next president will likely nominate several justices to the nation's highest court, as well as hundreds of other federal judges around the country. Neither Hillary Clinton nor Barack Obama should be entrusted with this responsibility. Each is beholden to leftwing special interest groups like the People for the American Way (evidently "American Way" means "governance by liberal fiat"), and each has demonstrated a knee-jerk hostility to exceptionally qualified jurists who happen to offend their leftist sensibilities.

The Mainstream Obamedia informs us that it's a waste of energy to deconstruct Senator Clinton's troubling judicial philosophy, since her chances of being president are less than none. We'll play along and focus solely on Senator Obama's view of what qualifies someone to don the black robes of justice. McCain's speech pointed out that the eminently qualified and overwhelmingly-confirmed John Roberts proved sub-standard for Obama. Mr. Post-partisan attempted to justify his vote against Roberts by pontificating that in order for a judge to be acceptable, he'd have to share "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."

While this laundry list of feel-good qualities may be helpful in identifying the next Dr. Phil, it has absolutely nothing to do with the job description of a Supreme Court justice. Values, internationalist savvy, and empathy do not, and should not, determine how a jurist interprets the text of the US Constitution. Conservatives and liberals have long quarreled over how the Constitution should be interpreted. The former contingent argues that the framers' intent should take precedence, and the latter contends the document is "living and breathing," constantly adapting to mirror contemporary society. Alarmingly, Obama's stated judicial skill set doesn't even mention the Constitution. Obama appointees, it's not unreasonable to suspect, would be very liberal lawyers who reflect the "core concerns" and "empathy" of Obama himself. Associate Justice Michelle Obama, anyone?

McCain assailed this ridiculous standard in his North Carolina speech. "Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other," he said. Bingo.

...

The choice will be between the rule of law and the rule of "feelings." As many of us have learned, it is a waste of time to invalidate feelings whether they are based on reality or not. Obama for all his time in law school never learned the cultural and legal importance of the rule of law. Mugabe is an example of how the rule of feelings can move off the tracks. It also makes it difficult to structure a business or enterprise based on what some judge in the future will find empathy with.

For example, I have empathy for Mexican migrants who come here to work. If I were in their circumstances, I would probably want to do the same thing, but I would not. I have respect for the law and it is important that everyone have respect for the law for us to have a fair society. I respect the Mexican immigration laws too and do not intend to immigrate there. If we let empathy overwhelm respect for the law we are setting a standard that corrodes democracy and the legislative process.