Supreme Court Justice David Souter is retiring. As constitutionally mandated, President Obama will name Souter's successor. This is appropriate and presents no problem. The problem arises in the selection criteria that the President has announced he will use in chosing the next judge to serve on our country's highest court. The Washington Times reports, "empathy" will trump knowledge of the law.
President Obama said Friday he will look beyond traditional legal experience to fill the seat of retiring Supreme Court Justice David H. Souter -- to someone who can relate to average Americans...
"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," Mr. Obama said.
He is being encouraged in this by political supporters:
Liberal interest groups said in replacing him, Mr. Obama must push for a judge who will look beyond the letter of the law to consider race, and vulnerability.
What is "the rule of law"? Wikipedia provides a decent introduction to this essential ingredient of a liberal (liberty and rights-based) political system.
The rule of law, also called supremacy of law, is a general legal maxim according to which decisions should be made by applying known principles or laws, without the intervention of discretion in their application. This maxim is intended to be a safeguard against arbitrary governance. The word "arbitrary" (from the Latin "arbiter") signifies a judgment made at the discretion of the arbiter, rather than according to the rule of law...
All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.
Rule of Law is a legal-political concept identifying the supremacy of law over the arbitrary judgment of men. It's ultimate purpose is the protection of individual rights from the government's abuse of power. The Rule of Law acts as a restraint on government, requiring it to abide by objective, predictable rules. Lady Justice is blindfolded--not to obscure her review the facts or the law, but to prevent knowledge of specific individuals from influencing her judgment. Fear, empathy, favoritism, all must be excluded from a judge's decision in order to achieve equal treatment before the law.
The essence of tyranny is arbitrary power. The progress of civilization has a been a battle against the arbitrary and tyrannical use of force by thugs and by governments. It is a battle fought not just with swords (although Justice requires a sword as well) but with ideas. The principles of "The Rule of Law" and its corollary "Equality Before the Law" are not just "some abstract legal theory" to be subordinated to "the daily realities of people's lives" but are instead the essential principles which differentiate a liberal republic from tyranny. Our President's ignorance of this is inexcusable, and cause for great concern.
Note: The bronze statue of Lady Justice is displayed at the Saint Louis University School of Law. I tried to find the name of the sculptor and the photographer but so far have been unable to locate them. For more of my thoughts on this wonderful sculpture, click here.