The proof is in the pudding, they say.
Timothy P. O’Neill claims the history and roots of the current members of the High Court are too similar, their backgrounds too homogeneous, to allow for true justice to be dispensed.
According to O’Neill, President Obama has an historic opportunity to correct the court. To broaden it’s foundation and strengthen it’s ability to work in this modern time with an open-minded understanding of our current situation.
Professor Lee Epstein of Northwestern has observed that “Diversity of inputs makes for stronger outputs.” Obama should cast the widest possible net to find a person who can bring a fresh set of experiences and perspectives to the work of the Supreme Court.
O’Neill claims as evidence of the problem the dearth of unanimous decisions in recent court history. And states as a possible cause the acrimonious attempted appointment of Bork and the travesty of political murder that borked Bork.
With the reticence of succeeding Presidents to propose any but established Federal judges to the high court, the court’s base has indeed narrowed, but is the non-unanimous nature of the court a bad thing?
I say not. And I say that a preconceived notion with an aim toward heterogeneity is not the solution to any problems the court now faces.
The purpose of the high court is to apply and interpret the law in difficult cases. It is not to have empathy or to make exceptions or to make law. Anything more or less than application and interpretation of the law is a failure and a grab for power not allocated to the judicial branch by the Constitution.
Reasonable people may disagree and the stress of disagreement slows down a mad human rush towards oblivion.
Such enforced conflict is not the best solution, but in our current era of stratified ideology, it’s pragmatic and effective.
The aim, in selecting judicial appointees, for any President, ought to be whether or not the person selected has an understanding and appreciation for the law. That is the only criteria which is reasonable.
Thomas Sowell counters with the basic argument of Constitutional rationality:
People who are speculating about whether the next nominee will be a woman, a Hispanic or whatever are missing the point.
That we are discussing the next Supreme Court justice in terms of group “representation” is a sign of how far we have already strayed from the purpose of law and the weighty responsibility of appointing someone to sit for life on the highest court in the land.
That Obama has made “empathy” with certain groups one of his criteria for choosing a Supreme Court nominee is a dangerous sign of how much further the Supreme Court may be pushed away from the rule of law and toward even more arbitrary judicial edicts to advance the agenda of the left and set it in legal concrete, immune from the democratic process.
It is always interesting to me that those who are so (mistakenly) tied up with the “Democracy” of America are so very un-Democratic about critical moral, cultural, and social issues. America is designed to be a Republic (if we can keep it) because of the innately sinful nature of man.
Those claiming the mantel of Democratic ideals are often the first to bypass them and the will of the people, or directly contravene it, by seeking attention and action from the legislative and judicial branches to impose their minority ideas upon the majority.
Fairness is too often very unfair for someone else, and the flip-side of tolerance is tyranny.
We are an equal society, say many. But Sowell cautions that this is often no more than smoke and mirrors:
We would have entered a strange new world where everybody is equal but some are more equal than others. The very idea of the rule of law would become meaningless when it is replaced by the empathies of judges.
Obama solves this contradiction, as he solves so many other problems, with rhetoric. If you believe in the rule of law, he will say the words “rule of law.” And if you are willing to buy it, he will keep on selling it.
We live in a society governed by the rule of law. Our society requires that it’s members be knowledgeable and intelligent and involved.
When we sacrifice knowledge and intelligence at the altar of equality we lose the ability to be involved.
As more and more power is usurped from it’s right and proper owners, we all lose.
Thomas Sowell ends his article with a somber warning we would all do well to heed:
The biggest danger in appointing the wrong people to the Supreme Court is not just in how they might vote on some particular issues — whether private property, abortion or whatever. The biggest danger is that they will undermine or destroy the very concept of the rule of law — what has been called “a government of laws and not of men.”
Under the American system of government, this cannot be done overnight or perhaps even during the terms in office of one president — but it can be done. And it can be done over time by the appointees of just one president, if he gets enough appointees.
Some people say that who Obama appoints to replace Souter doesn’t really matter, because Souter is a liberal who will probably be replaced by another liberal. But, if no one sounds the alarm now, we can end up with a series of appointees with “empathy” — which is to say, with justices who think their job is to “relieve the distress” of particular groups rather than to uphold the Constitution of the United States.