When Associate Justice David Souter announced he would be retiring from the Supreme Court, President Obama lost no time in throwing a cat among the pigeons.
"I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook," he said. "It is also about how our laws affect the daily realities of people’s lives. . . . 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."
While Obama also said he would seek a nominee of sharp and independent mind and a record of integrity, someone dedicated to the rule of law and respectful of the appropriate limits of the judicial role, this in no way mitigated the horror that the eventual nominee might have gained wisdom from life experiences rooted in reality.
The very idea came as a shock to right-thinking people.
The Pittsburgh Tribune-Review, which famously specializes in taking high dudgeon to new lows, surely spoke for many of its readers, some of whom perhaps are actually descended from Genghis Khan, when it editorialized: "Obama seeks to nominate to the high court someone who will bend, fold, expand and ignore the law, not uphold it. Who needs ‘an abstract legal theory’ or a ‘footnote’ when you’re freelancing the law and acting as an unelected legislator seeking a feel-good, kumbaya outcome in pursuit of ‘social justice,’ right?" Well, since they asked, I reckon the answer is: wrong.
But before pursuing the point, what do certain conservatives have against "kumbaya" anyway? The blessedly former Pennsylvania Republican Sen. Rick Santorum had it in for "kumbaya," too, using it to ridicule the AmeriCorps program.
Yet many of us enjoyed singing that innocent campfire song, rather hoping that the Lord might come by here. That would be the same Lord who saved the woman accused of adultery from being stoned to death under the law. Perhaps that’s it. He was an activist judge Lord.
This use of the term "activist judges" as a political slur is one of the great conservative con jobs. According to this myth, only liberal judges can be activist.
Well, as they say back in the old country, pull my other leg, it’s got a bell on it. For that matter, pull any judicial cloak and what rings are the accumulated history, insights and prejudices of the wearer.
Sure, some liberal judges fit the activist stereotype. But when it comes to bending, folding and expanding the law, you’d think some of the conservative justices on the Supreme Court were tailors or cigar rollers. To greater or lesser degrees, every judge is inclined to be activist on occasion.
How could they not be? The idea that the laws and Constitution of the nation are always obvious is not obvious to anyone who has ever paused to think about it. If the work were all that obvious, justices would just phone their opinions in from the golf course — well, more than they do now.
Interpretation is the name of the Supreme Court game. Under one theory, the Constitution should be interpreted according to the original intent of the Founders, men who lived in a nation where much of modern life was unimagined, where slavery was accepted and women were second-class citizens. Good luck with that theory. It has about as much chance of taking off today as a concrete balloon.
Surely a more sensible approach is to take the founders at their word in light of changing times.
Consider these wise and learned words: "In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open for future elaboration to meet changing conditions."
That sensible observation, by the way, is taken from a booklet prepared by the Supreme Court itself. It can be found on its Web site.
But as job descriptions go, a better one is written above the main entrance of the Supreme Court building — "Equal Justice Under Law."
In this formulation, equal justice is the first mentioned partner of law. They go hand-in-hand, a fact that should not be forgotten by those conservative judges who, in their own refined activist way, think they are in the straining-out-gnats-while-swallowing-camels business, not the justice business.
The Supreme Court is a highly traditional place — it still has quill pens for counsel and its own court seal, which is kept in the back and sometimes can be heard barking when Justice Antonin Scalia says something stupid (OK, I made that up). The point is that it could stand a newcomer with a sense of justice informed by real life.
(Reg Henry is a columnist for the Pittsburgh Post-Gazette. E-mail rhenry(at)post-gazette)