Sunday, May 3, 2009

"A Government of Men..."

On Friday, May 1, 2009, President Obama made a surprise appearance at a routine White House press briefing to announce the retirement of Supreme Court Justice David Souter. He used the occasion to make a statement about the philosophy that will guide his choice for Souter’s replacement, and presumably for all of his judicial nominations.

Here are Obama's full remarks, as released by the White House:

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task -- reaching a just result in the case that was before him.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion -- the hallmark of not just being a good judge, but of being a good person.
I am incredibly grateful for his dedicated service. I told him as much when we spoke. I spoke on behalf of the American people thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.

Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who 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 -- 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 as just decisions and outcomes.
I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.

As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court's new term begins. (Emphasis added.)

“They define a republic to be a government of laws, and not of men.” John Adams, 1775

“We will re-define America as a government of men, and not of laws.” Barack Obama, 2009

In so many words, that is what the president actually said. No absolutes? No “abstract legal theory”? What will “the daily realities of people's lives” be like in a country in which laws passed by elected representatives can be subordinated to the emotional whims…the empathy…of a judiciary not even bound by the restraints of “footnotes in a case book”…i.e., prior legal precedent?

What will become of the sanctity of contracts if a judge is to consider “people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes”? What if justice clashes with “whether [people] can make a living and care for their families…”? What will become of the “constitutional values on which this nation was founded” after our courtrooms become a fog of non-absolutes?

President Obama’s judicial nominating guidelines are consistent with his belief in the “fundamental flaw” of America’s founding documents…the lack of any “redistributive” authority (See my post of 11/2/08 for more on this). His call for “empathy” by our judiciary is nothing more than an attempt to circumvent that “flaw”, as well as justice, through the courts. Of course, there is nothing new about using the courts to redistribute wealth. That has been the trend for decades under the legal theory that has been corrupting American tort law for the past century…Instumentalism. (For an in depth discussion on Instrumentalism, which seeks to define “law as a means to…social goals” rather than civil justice, read David Little’s essay in The Objective Standard.) President Obama has now elevated the Instrumentalist view of law into an “absolute” standard for his nominees. No absolutes, indeed!

I find the words uttered Friday by an American president…and one that is a constitutional scholar to boot…truly frightening. Unfortunately, though, it is not surprising. This goes way beyond politics. When objective, clearly defined laws based upon absolute universal principles give way to the arbitrary whims of government officials, you have arrived at tyranny.

The counter-revolt to overturn the rule of objective law and the American Revolution has been going on for about a century. This president is giving that trend a mighty push. On the distant horizon, the terrible consequences for America are beginning to come into view.

"Whatever government is not a government of laws, is a despotism, let it be called what it may." Daniel Webster

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