Who Will Obama Select to Replace Judge Souter, A Judge or an Umpire?

[drbob]

           President Obama will make his first Supreme Court appointment soon.  He will replace Justice David Souter, who was appointed by President George H.W. Bush in 1990.  Although, Souter was appointed by a conservative president to be a conservative justice, he turned out to be a major disappointment for conservatives.  Souter's decisions sided more often than not with the liberal wing of the high court.

            Obama says he will appoint a justice that "...understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives."  It is a "quality of empathy," Obama said, that is "an essential ingredient for arriving at just decisions."

            Well for conservatives, "them's fightin' words."  Upon hearing them, they immediately raise the alert level to bright red.  Conservatives buy into the Justice John Roberts' philosophy.  In his confirmation hearings, Roberts famously likened judges to baseball umpires, who impartially apply existing rules to the call of balls and strikes.

            Roberts' umpire analogy is flawed.  Even umpires have to make a judgment and certainly everyone will not agree with every judgment they make.  If you don't believe me, go to a baseball game.  Judges make judgments; that's what they do.  They interpret the law. Of course, judges must be neutral, they are bound by the constitution, and by precedent.  However, if judges did not consider the kind of world their decisions will create, advances in technology, or new thinking, we would not need judges at all.  We could simply build a computer, enter the facts and with a few mouse clicks get a decision on our most weighty issues in a nanosecond.  We don't build that computer because, for the issues most vital to us, empathy is required.  For these issues, writes Washington Post editorialist, Ruth Marcus, judges must "... bring life experiences, a conception of the role of the courts, and as Obama put it, a broader vision of what American should be." 

            Candidate Obama stated his "empathy" argument in a 2007 campaign speech.  "The issues that come before the court are not sport," he argued, referencing Roberts' umpire analogy. "They are life and death.  And we need somebody who's got ....the empathy to recognize what it is like to be a teenage mom; to understand what it is like to be poor, or African American, or gay, or disabled, or old.
            So, I hope Obama selects someone who in impartial, who has a deep understanding of the law, who understands the constitution, and who has "that quality of empathy."  I hope he does not appoint an umpire.