Obama Wants Pragmatist Judge Who Has Empathy

we go again! The time for the two major political parties and their cheerleaders, the ideologically and economically based advocacy groups who support them, to compete in the Super Bowl of judicial selections   – The Nomination and Confirmation of a Supreme Court Justice – has arrived again. But, as a result of the last two elections, the teams look dramatically different than they did the last two times. They have also changed their positions on the field as well as the signals they will use to communicate the plays they will call to implement new strategies adopted for the changing times.

                The D’s (Democrats), who have been playing defense for 20 of the last 28 years and for the last 8 years consecutively are now on offense with a new quarterback , who also serves as their player, coach, and general manager in the White House. They also have considerably more players both on the field and on the back benches of the Congress than any time in the last quarter of a century. They will shortly (if they haven’t already by the time this column is published) name their best judicial player who will receive what will probably be a politically safe, short to medium length nomination pass to the Supreme Court.
                The goal of the Democrats is to at least maintain the philosophical balance on the Supreme Court at the present time while laying a foundation fro a shift in the philosophical balance later. The strategy also encompasses, if possible, a change in the paradigm and protocol which has emerged in the last quarter of a century in Senate confirmation of Federal judges and, in particular, U.S. Supreme Court Judges.
                Up until 25 years ago, federal judges were generally selected for appointment on the basis of some combination of their credentials, qualifications, political connections, constituencies, and reputation. Politics always played a role, but the role of ideology in either the judicial nominee’s judicial or political philosophy, although always considered, was never mentioned or even acknowledged by either the President in nominating judges and justices or by the Senate in confirming them. Instead, code phrases such as pledges to appoint judges who are “strict constructionists” and “judges who will not legislate from The Bench, but would only interpret the law” were heard on the campaign trail and in the Oval Office.
                Twenty five years ago, if a U.S. Senator wished to oppose a federal judicial nominee, the political culture dictated that publically the senator oppose the nomination only on the basis of his or her lack of qualifications, inexperience or other character deficiencies, including scandal and not on the basis of the senator’s quarrels with the nominee’s opinion. Even if the nominee’s judicial and political philosophy were totally repugnant to the senator or even to a majority of the U.S. Senate itself, this was not to be the basis for opposing a person nominated by the president for a federal judgeship.
                This changed with President Regan’s nomination of D.C. Court of Appeals Judge Robert Bork to the Supreme Court. With that nomination, ideology and judicial philosophy were allowed to come front and center.” President Obama wants to return ideology and judicial philosophy to its old position backstage or if that is not politically possible, he wants it relegated to the chorus line, away from the spotlight, where its role in the adjudicatory and confirmation process will be less pronounced and perhaps more importantly, less visible. I predict that he will not succeed this time in changing the paradigm or the protocol.
                The right-wing of the Republican Party and its more ideological supporters in the more conservative advocacy groups and think tanks are determined to apply the same type of ideological test to President Obama’s nominee that, then, Senator Obama himself applied to President Bush’s nomination of Chief Justice Roberts and Justice Samuel Alito when he voted against them. And in doing so, they hope to begin to politically rebuild the Republican Party around the issue of political and judicial philosophy and restraint. I predict they too won’t succeed either in The Senate or in the country on these issues.
                The Republicans won’t succeed for a variety of political, demographic and cultural reasons. They also won’t succeed because their tactics appear to be intellectually incoherent. President Obama, I think slyly appeared to hand his opponents and their anointed leader Senator Jeff Sessions (R-Alabama) their issue by publically and repeatedly stating that he believes judges including Supreme Court Justices should have empathy, that is they should understand and care about the effect of their decisions on ordinary people and that a judges decision should be based on these factors and “not just on some abstract legal theory.” The President also appeared to unintentionally inflame them further by explaining that as a senator, he voted against the confirmation of Chief Justice Roberts and Justice Alito because they appeared to favor the powerful over the comparatively less powerful.
                These statements have been prematurely latched onto with unjustified glee by spokespersons for the Right. Their official position appears to be that judges should not pay any attention to the effects of their decisions on people because somehow that violates their judicial oath to adhere to “neutral principles” of law. This position, to say the least, ignores reality. It is based on the myth that somehow judges are uniquely able to construct a pipeline to the ultimate truth on all issues in all cases and may divine that truth without knowing what the effect of the resolution of the case by their decision would be on the litigants and other persons similarly situated. As a state court judge who was appointed by two different governors to two different courts, I can personally attest that neither at the time of my appointments nor at my subsequent investitures was I divinely or otherwise given direction on how to find the “truth” in my cases. Furthermore, if any of my Federal judge friends and acquaintances or even those whom I don’t know were provided such guidance, I would, to say the least, be surprised and would seek to be enlightened by them sooner rather than later.
                This view of how the legal system works or at least should work contrasts and competes with several other theories of jurisprudence that suggest that the way legal decisions are made by judges is not as outwardly and objectively directed as the classical theorists or as they are called now the subscribers of the “Legal Process School” of jurisprudence maintain. It also competes with what Judge Richard Posner of the 7th Federal Circuit in Chicago has labeled the “anti-theory” of judging which is the philosophy of “Pragmatism.” This is the philosophy which President Obama appears to be looking for in a judge or justice whom he would appoint. The President has actually used that word to describe his personal political philosophy, which as I have said is different from a judicial philosophy.
                Judge Posner explains that the pragmatist judge is interested in “the facts of the case” and in “what works and what is useful”. Therefore he or she wants to be informed as much as possible about the operation, properties and probable effects of alternative courses of action. Judicial pragmatism is the antithesis of legal certainty. The Pragmatist judge recognizes as Posner points out that “Society’s most tenaciously held ‘truths’ are not those that can be proved, probed, discussed or investigated.” These beliefs are what lay people and the popular media call “common sense”, and what lawyers, judges, and social scientists refer to as “frame of reference.”
                Opposing a nominee for Supreme Court Justice on the basis of the fact that she should not want to know or consider the effect of her decisions on the people who will be impacted by them and should not let the facts of the case, i.e. common sense, influence her because these facts might cloud her path to the certain truth which only she can know by virtue of the robe she wears is neither an effective political message nor a party building technique. The pragmatist in me though will anxiously watch how it works this time.

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