Opinion: Pick a Justice Who Unites, Not Divides, America

(April 24) -- As President Barack Obama considers his second Supreme Court nominee, he faces a real dilemma. His far left base wants him to replace retiring liberal Justice John Paul Stevens with another activist judge. That's why we hear so much talk about the current court having a so-called 5-4 conservative majority, when in many cases it has a 5-4 liberal activist majority. But the political environment is drastically different now than it was when Obama nominated Justice Sonia Sotomayor.

Then, Obama enjoyed record high approval ratings. Today, his numbers are inverted as more Americans -- especially independents -- increasingly blame him for ignoring the economy while he uses his political capital to promote bloated big government spending like the so-called stimulus bill and the health care takeover. This situation makes it much harder for the president's allies in the Senate to vote for another liberal.

Imagine a long summer of hearings about an Obama nominee who routinely criticized our military as immoral while they risked their lives in Iraq, or one who has a history of activist rulings on hot-button issues like abortion, homosexual marriage or a record of being soft on terrorists. Team Obama would shrug and say he or she is no more liberal than retiring Justice Stevens. But voters, especially moderates and independents, could easily decide this is one more reason to create a balance of power in Washington by voting Republican this fall.

President Obama has articulated a desire for judges to see beyond the facts of a case and, instead, make decisions based on empathy and social engineering. "We 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 its like to be poor or African-American or gay or disabled or old," he said.

The danger in the empathy standard is that it turns the notion that we live under the rule of law on its head. Americans have long understood that our legal system, at its core, is based on the principle of equal justice for all and not for some favored groups. When you look at the statue of Lady Justice, she is wearing a blindfold. This symbolizes the fundamental principle that justice should be dispensed fairly, equally and without regard to power, money, gender, race, identity or political favor. The empathy standard also implies that it's OK for judges to usurp the role of elected branches of Congress and the president, and use their power to make America more progressive.

In a court of law, the parties should approach the court equally and have their case decided impartially on the basis of the merits using established law in our Constitution or passed by democratically elected representatives. The American people recognize this as the best philosophy for how a judge should make decisions. Indeed, polls show an overwhelming rejection of the Obama empathy standard and support for judges who will decide based on the law regardless of who the parties are. A Rasmussen poll from early April shows that 60 percent of Americans believe a judge should decide cases based on the text of the Constitution and not a sense of empathy toward one of the parties.

The wisest course for President Obama is to return on one of his other campaign promises and be a leader who unites, not divides, America. President Obama can nominate a Supreme Court justice who will be accepted by both Republicans and Democrats if he selects someone who understands the role our Constitution assigns to the Supreme Court.

The justices' task is to interpret the Constitution and law as written, not to invent new policy while on the bench to suit his or her political ideology. The best nominee President Obama could appoint would be someone who approaches his or her role on the bench with humility; someone who recognizes that his or her role, while very important, is limited. Such a nominee would understand and respect the separation of powers and refrain from using the power of the courts to engage in community organizing writ large.

David McIntosh is a former U.S. representative from Indiana and co-founder of the Federalist Society for Law and Public Policy Studies.


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