And how do we pick our justices? Tradition!

President Obama said Friday that he would seek a caring person to replace departing Supreme Court Justice David Souter, and those who believe in “abstract” laws need not apply.

by Michael Naragon

When David Souter announced Thursday evening that he would retire from his position as Supreme Court Justice, the speculation concerning who would be selected to replace him began.

With a 59-40 Democratic edge in the Senate, it is unlikely that Republicans would be able to block President Obama’s nominee, whomever it may be.  But on Friday, the president gave the nation a hint as to his criteria for a potential Supreme Court justice.

“I will seek somebody with a sharp and independent mind and a record of excellence and integrity,” Obama told the White House press corps.  “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.”

Now I’m not a lawyer like the president, but isn’t the job of the Supreme Court to rule whether laws brought before it are constitutional?  The Court exists to deal with the abstract–Congress and the President take care of the specifics, and the Court, if asked, rules on the constitutionality of such specifics based on our founding document.

“It is also about how our laws affect the daily realities of people’s lives,” Obama continued, “whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

Again, I’m not a constitutional theorist, but I’ve read it many times.  I’ve never come across anything in Article III that mandates the Court consider the personal ramifications to those affected by their decisions.  Justices, on the contrary, are to keep personal feelings out of their rulings.

The Constitution merely requires the Court to rule on constitutional questions, as well as cases affecting ambassadors, maritime jurisdiction, cases involving the U.S. as plaintiff or defendant, disputes between states or citizens of different states, or cases involving American citizens and foreign states.

Nowhere in the Article does it make any requirement that Justices be sensitive to people’s “daily realities.”  Instead, they are to apply the Constitution to cases they hear.

And when it comes to that Constitution, the president appeared to choose his words with extreme caution as he read from a prepared statement.

“I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions,” said Obama.  Does this mean he is looking for someone who only honors the tradition of the Constitution, not the document itself?

It wouldn’t have been difficult for him to simply say “who honors our Constitution.”  Traditions are, by definition, not written down.  Traditions are cultural ideas that are passed from one generation to the next.  Our Constitution is not a tradition.  It is a set of rules on which the nation is based, by which we function as a Republic.

By using the word tradition, Obama is– intentionally I believe–implying that the Constitution is not the standard by which laws should be judged.  Instead, the new Justice should use personal conviction and empathy as the true guide.

Now to those who disagree, claiming that Obama didn’t make a calculated move by omitting the term Constitution, I submit his next statement.

“I will seek somebody who shares my respect for constitutional values on which this nation was founded,” the president said, “and who brings a thoughtful understanding of how to apply them in our time.”  Not “my respect for the Constitution.”  Rather, “my respect for constitutional values.”  Which parts of the document does the president value?  Which does he not?

Anyone who has seen the president speak or has followed his campaign and first 100 days in office knows he is incredibly articulate, particularly when he has a speech prepared for him.  Whoever prepared his statement, whether it was Obama himself, or David Axelrod, or one of his other handlers, cleverly sidestepped any mention of the new Justice abiding by our founding document.

Rampant speculation has already begun surrounding the president’s selection.  Regardless of his specific choice, however, it appears as though the nominee will not be someone who looks at the Constitution as the ultimate glass through which all federal laws should be viewed.  Instead, we’ll be given another Ginsberg or Breyer, running through the Articles and Amendments like a bull in a china shop.

If this happens, if Obama selects someone who relies only the tradition of the Constitution and not the document itself, might not the rule of law become as shaky as a fiddler on the roof?