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Opinion
May. 10, 2009
Copyright © Las Vegas Review-Journal

NEVADA VIEWS: The president and the high court

Obama's standard for judges is troubling

By TUAN SAMAHON
SPECIAL TO THE REVIEW-JOURNAL

Last week Justice David Souter announced his intent to resign from the U.S. Supreme Court, giving President Barrack Obama his first opportunity to appoint a judge to the highest court in the land. In our constitutional system, the president has the power to nominate judicial officers, but U.S. senators review those nominations and may approve or disapprove of them. This check and balance is the process of "advice and consent."

This check may become very important in the coming days.

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    • Recently, Obama repeated his commitment to his campaign standard for selecting federal judges. Stumping before a July 2007 Planned Parenthood conference, Obama said "[w]e need somebody who's got the heart, the empathy, to recognize what it's like to be a young, teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

    Obama's appeal to "empathy" is not advocating appointment of jurists committed to Christian love of their neighbors as themselves. His message was code for his base. Translated: "I'm going to appoint judges committed to particular legal outcomes that favor categories of litigants on those issues that matter most to them."

    The problem with Obama's decoded standard is that it is fundamentally at odds with judicial impartiality toward parties and the American ideal of the rule of law.

    Courts hear disputes between parties with adverse interests. There are losers and winners. That context makes Obama's standard particularly troubling. When Obama is speaking about empathy, he is speaking in the concrete context of parties locked in legal disputes about which both sides care dearly. In deciding the dispute, the judge ought not be biased for either party on the basis of racial, sexual or any other status. Obama proposes jurists with a thumb on the scale.

    Congress has recognized that our legal system requires outcomes on the basis of the law -- that is, authoritative legal texts and judicial precedent, not the party's status. Indeed, federal law obligates federal judges to take a judicial oath of office confirming this commitment: "I ... solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States. So help me God." The oath embodies the judiciary's independence not only from the other branches of government, but also independence from parties that may appear before it.

    But that is decidedly not what Obama's standard calls for. His appeal to "empathy" is inconsistent with what most Americans want in a Supreme Court Justice. This approach is alien to many. According to this approach, the legal system is systematically racist and oppressive; the Constitution and other legal texts are indeterminate; justices are ideally noble guardians who are qualified and authorized to update the Constitution by judicial decree, under pretense of channeling evolving contemporary standards (as determined by the judge); and law is nothing more than the continuation of politics by other means. "Justice," according to this approach, is a collection of outcomes where favored groups win with the help of jurists committed to their victory. Absent is the traditional notion of justice as a process by which judges, acting as umpires, neutrally adjudicate disputes by resort to rules and standards embodied in the democratically enacted law.

    If "We the People," as represented by the Senate, want to avoid judicial precedents that embody bias for certain types of litigants -- and by implication bias against other types of litigants, our best check is senatorial advice and consent. The stakes are high. The next justice will control a fifth vote on many significant issues and likely will occupy the office for the next two decades. That is a long time, particularly when the court writes with indelible constitutional ink. Amendments to the U.S. Constitution have overturned only four of the Supreme Court's prior opinions.

    The only pledge, promise, or commitment that the president should seek, or that a federal judge should give, is to uphold "this Constitution," as required by the Constitution's Oath Clause. Our U.S. senators should reject any nominee who appears incapable or unwilling to honor that oath.

    Tuan Samahon is an associate professor of constitutional law at the University of Nevada, Las Vegas, William S. Boyd School of Law. The views expressed are his alone.

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    Benjamin wrote on May 29, 2009 01:29 PM: Glad this guy is finally leaving UNLV and taking his right wing "judicial activism" with him (note, he's best buddies with Jay Bybee who wrote the "torture memos" for George Bush before being promoted to the Federal Circuit Court). His feigned disdain for mixing politics into the courts is disgusting. Good riddance, Samahon.


    Tom in Summerlin wrote on May 12, 2009 04:00 PM: We also wonder whether writer, Mr. Samahon, adheres to all his mentor, Jay Bybee philosophy's on torture, and whether he would like Obama's judiciary to be more like Bush/Cheney's, don't question the Executive's imperial decisions.


    Tom in Summerlin wrote on May 12, 2009 09:37 AM: I guess empathy in support of conservative interest groups is fine with this writer. If the NRA, the religious right, and the "anti-tax on anything" crowd makes an argument we should have empathy for those positions, but not for the poor, minorities or those without health care, we should only have rational rulings for them. Without empathy I guess separate but equal drinking fountains are also OK with this law professor. Either that or we should have only rights enumerated in the original constitution without empathy. So if you want to own a gun, make sure you are part of a well regulated militia, because that is the original intent. This article is typical of the pre-emptive strikes but the right to be against ANY nominee by Obama. I really hope we follow the Republicans arguments of the 1990's and 2000's that all nominees to the Federal bench have to have an up or down vote in Senate, no filibusters. Or we will invoke the nuclear option. What goes around. . . . .


    br wrote on May 10, 2009 10:00 AM: We still live with a lot of unjust supreme court decisions resulting from thumbprints on the scales. It was known as the "Warren court".

    Eisenhauer apointed Earl Warren, who immediately became a flaming liberal. President Lyndon Johnson appointed Thurgood Marshall and the game was on.
    Things recently began to move back toward center. Obama's appointment(s) will give us a court from which our legal system may not survive. Coupled with his other concepts, America itself may become a second rate nation. Some of you may scoff. Many others feel the same as I do. We are concerned for the country we have served and love.


    Yo Don wrote on May 10, 2009 09:57 AM: I'm having a poker game at my house next Friday. Wanna come? I use " living Rules" that I can change at any time because it is my house and my interpretation is all that matters. Game starts at 8:00. Bring lots of cash.


    Don wrote on May 10, 2009 09:20 AM: Good thing Ensign and all the Republicans in the Senate believe in straight up or down votes for Justices to the Supreme Court since 2001!

    b....dark out in the wilderness, hey? Is the Constitution dead? Do you believe that you have a right to be married? To have children? To have access to birth control? Try to imagine what your life would be today if the only rights you had were specifically mentioned in the Constitution. Would the punishment of 1774 be accepted today and not viewed as "cruel and unusual"?


    Marvin L. Longabaugh wrote on May 10, 2009 08:04 AM: I couldn't agree with this op-ed piece more. What a tragedy that the Boyd School of Law is losing a professor like Professor Samahon.


    b wrote on May 10, 2009 07:07 AM: And that my friends, is why Obama, Harry reid, and Nancy Pelosi call it the new "living constitution", so it can be changed daily, to suit their daily needs. God help us if we don't get this character impeached, and soon