Letters to the Editor
Readers write about how President Obama should choose his judicial appointees.
How should Obama choose his court appointees?
Regarding the Feb. 18 editorial, "Obama's next test on bipartisanship": The Monitor says that President Obama has "made clear that he wants courts to use the Constitution for social policy," but Mr. Obama has said no such thing. What he has said is that he wants judges who have empathy, which means simply that judges should be able to understand the plight of individuals very different from themselves. That often seems required by the judicial role of providing "equal justice under law" not inconsistent with the judicial oath, as the Monitor asserts. By asserting with flimsy evidence that Obama wants judges who will disobey their oaths, the Monitor does just what it is warning against: directing anger towards judges and politicizing the judiciary.
The opinion that "court rulings should be based on what is written in the Constitution" sounds great until you remember that no text has a completely transparent meaning, and the reason why we have higher courts is precisely to interpret what our federal and state constitutions mean. Meanings change as conditions change. Judges should be constrained by legal precedents, but they cannot ignore present conditions.
We now have hundreds of Bush appointees in the federal court system who were appointed under the slogan of "strict construction," but who were expected to enact a conservative social agenda. Even on the elected courts, we now have judges whose elections were engineered by massive contributions to "issue ads" from groups with a narrow religious or corporate agenda. If our goal is to restore a level playing field to the courts, we had better hope that President Obama looks at the context for each appointment to see if a "bipartisan" appointment will serve the people who need an impartial decision, or if it will just exacerbate what has become a serious threat to justice in our judicial system.
This editorial relies on a mistaken premise in its criticism of President Obama's statement that we need judges who have "the heart, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old." It is simply not true that while "empathy is necessary for presidents or legislators, it runs counter to the judicial oath."
Interpreting the Constitution, treaties, and statutes often requires being able to see the world from other people's points of view. This is not a new concept. In 1899, the Supreme Court held that any American Indian treaty must "be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians" at the time the treaty was signed.
In Brown v. Board of Education, evidence of segregation's impact on schoolchildren helped convince a unanimous court to repudiate its "separate but equal" doctrine and hold that "separate educational facilities are inherently unequal" and unconstitutional. Understanding the perspective of people who have been arrested and of poor criminal defendants led the court to require Miranda "right to remain silent" warnings and court-appointed attorneys.
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