While I touched on these issues lightly the first time, I want to dig a little deeper. Empathy and heart are not bad qualities in a judge. As a practicing attorney, I would never want to appear in front of a heartless judge who had no empathy for the parties in his court. When a judge displays an imperious temperament and is callous towards lawyers and their clients, we tend to call it “judge-itis”—and it is not a compliment.
Sen. Obama's Public Statements
However, Sen. Obama’s use of the terms empathy and heart suggests that he means something more than just treating parties with courtesy and respect. In three cases, Sen. Obama opposed President Bush’s nominees on the basis that they had not ruled in favor of specific groups.
In opposing the nomination of Judge Leslie Smithwick to the Fifth Circuit Court of Appeals, Sen. Obama said:
"Judge Southwick’s answers to the Senate Judiciary Committee failed to excuse his disappointing record on cases involving consumers, employees, racial minorities, women and gays and lesbians. After reviewing his 7,000 opinions, Judge Smithwick could not find one case in which he sided with a civil rights plaintiff in a non-unanimous verdict."
Obama Statement on the Nomination of Judge Smithwick for the U.S. Appeals Court, July 23, 2007.
In opposing the nomination of Judge Samuel Alito to the Supreme Court, Sen. Obama stated:
"The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito’s many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties.
"By ruling this way so many times over a course of so many years, Judge Alito simply does not inspire confidence that he will serve as an independent voice on the U.S. Supreme Court."
Obama to Vote No on the Nomination of Judge Alito to the Supreme Court, January 24, 2006.
In opposing the nomination of John Roberts to be Chief Justice, Sen. Obama stated that in 5 percent of the cases the application of the law would not be clear. He went on to state:
"In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled—in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart. . . .
"The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In those same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman than a man."
Remarks of Senator Barack Obama on the Confirmation of Judge John Roberts, September 22, 2005.
Each of the statements quoted above were taken from official statements released by Sen. Obama and posted on his Senate website. Taken together, they suggest that the job of a judge is to favor the weak over the powerful and to effect social change in favor of racial minorities, women, gays, lesbians, employees and the disabled.
In the case of Judge Smithwick, Sen. Obama suggested that merely ruling in favor of civil rights plaintiffs in a unanimous decision was not enough; instead, there should be a record of ruling in favor of civil rights plaintiffs when other judges were ruling for the defendant. In the case of Judge Alito, Sen. Obama defined an independent voice on the Supreme Court as one that would rule in favor of the powerless against the powerful. In the case of Judge Roberts, Sen. Obama said that when the law was not clear that a judge should rule with his heart and in favor of the weak as opposed to the strong.
This reminds me of the time when my father served on a jury. An individual had sued a realtor. At the end of the jury’s deliberations, they found that the plaintiff had not proven his case and were about to render a verdict for the defendant. At that point, one of the jurors spoke up and said “Ah, but the defendant is rich so we must punish him.” To the jury’s credit, they did not follow that advice. However, the story points out the danger of trying to pick sides based on class or economic standing.
Conclusion
There is a school of thought called legal realism or critical studies. One claim by the proponents of critical legal studies is that “all law is politics.” “Many modern-day commentators have interpreted it as implying that in the eyes of the CLS scholars, all ‘legal’ decisions are just like ‘political decisions’ in the sense that it is impossible to tell judicial and legislative acts apart.” http:/en.wikipedia.org/wiki/Critical_Legal_Theory.
Based on his public comments, Sen. Obama seems to articulate a view that law is politics and that judges should weight their decisions in favor of the powerless. While this may be preferable to the view that judges should weight their decisions in favor of the powerful, it raises the question of whether judges should be choosing sides at all. Judges, being human, will always be shaped by their experiences, their upbringing and their core beliefs. However, it does not follow from this statement of the obvious that judges should rely upon those biases to act as super-legislators. Each of the three branches of government has a separate role to play. The legislative branch makes the rules; the executive branch should implement the rules; and the judicial branch should enforce the rules. However, those rules should come from Congress or the Constitution rather than the judge’s own sympathies. In my mind, a good judge is one who is aware of his own biases and sympathies and is prepared to rule the other way.
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