BrianGarst.com

The pending retirement of Justice David Souter is an excellent opportunity to remind the public what role the judiciary plays in a liberal democratic society.  The content of news coverage only confirms the need to spread this message, as the obsession so far has been over identity politics, rather than judicial performance.

The president faces competing imperatives in replacing Souter, including the pressure to appoint the first Hispanic to the Supreme Court and his own ties to prominent legal academics beginning with his years at Harvard Law School.

So the two pressures he is under include 1) pandering to an identity group and 2) rewarding his pals.  How about looking for justices that have the ability and experience to understand the law?  That does just happen to be their job, and not “understand[ing] the plight of real people,”  a nebulous criteria an unnamed source within the Obama administration said the President is looking for.

The function of a judicial system is to interpret the law as it is written, not according to changing social values as judges see them.  Nor is it their place to look at the two sides and decide which is more “deserving” based upon what identity groups they belong to.  What a judge should do in approaching a text is to seek to understand its meaning as written.  It’s not their place to weigh the desirability of the consequences.  That’s what we have legislatures for.  It’s also their job, and not the courts, to make sure current law fits current values.  Sadly, the President’s recorded views on the matter leaves a lot to be desired.  He wants a judge who places empathy above law, who isn’t afraid to “break free” of legal restraints in order to “redistribute wealth.”  This is a dangerous view which must be opposed.

Barack Obama constitution David Souter race issues