You Want Radical? You Got ItSupreme Court justices take an oath promising to "faithfully and impartially discharge and perform all the duties … of the Supreme Court of the United States under the Constitution and laws of the United States. So help (them) God."
They do not take an oath to "faithfully and impartially perform all duties … except when personally offended or when having pangs of empathy for the poor or trying to be a stand-up guy or gal." Listening to Barack Obama, you may think they do. And though the Bush administration cared little for the Constitution, the next administration, it seems, won't care in a brand-new way. You may remember conservatives fuming when Sen. John McCain joined the Gang of 14 -- a group of self-proclaimed moderates who in truth were too cowardly to vote on qualified judicial nominees. These days, McCain is reborn. Embarked on his "Don't Worry, I'm No Maverick! 2008 Tour," he has addressed conservative concerns about judges, promising to look for "judicial restraint" and "limits to the scope of judicial power." McCain cited John Roberts and Samuel Alito as model judicial appointees. For conservatives, it's comfort rhetoric (though hard to believe). For his soon-to-be presidential rival, it's unacceptable. "Barack Obama," explained spokesman Tommy Vietor, "has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves." Really? Obama, a graduate of Harvard Law School and a former lecturer on constitutional law at the University of Chicago, knows full well that the Supreme Court isn't charged with upholding subjective worldviews on "economic and social justice" -- quite the opposite, in fact. Justices solemnly swear to "administer justice without respect to persons and do equal right to the poor and to the rich." So judges, incredible as this may sound, are not prohibited from "protecting" the powerful if the powerful happen to be right on the constitutional issue. To suggest otherwise, as Obama has, is to suggest they should ignore their oath. Politically speaking, Obama would be served well as a candidate to throw in -- you know, for kicks -- the word "Constitution" when explaining his take on the highest court of the land.
The always-irascible Democratic Party Chairman Howard Dean chimed in, calling McCain's view a "radical right-wing judicial philosophy." (1. rad i cal -- adjective: of or in disagreement with Howard Dean.) Conceding that both sides are posturing, one could ask, which is more radical: judicial restraint, which allows a representative government to make laws and an independent judiciary to rule on the constitutionality of those laws, or a judicial philosophy guided by shifting personal morality and so-called "social and economic justice" rather than the Constitution? After a recent Supreme Court death penalty case, Obama said he would nominate justices who shared "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." Relying on such extraordinarily subjective views undercuts the idea of blind justice. It implies that justices should be free to follow their own broader perspectives rather than the law. It also means that appealing to the court's vision of "social justice" -- an elastic notion, to be sure -- would be as vital as making a strong legal case. You want radical judicial philosophy? There you have it. David Harsanyi is a columnist at The Denver Post and the author of "Nanny State." Visit his website at www.DavidHarsanyi.com. To find out more about David Harsanyi and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.
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