You’ve Gotta Have Heart? How Obama Chooses Judges

Deal W. Hudson
August 10, 2008

Evoking the power of the human heart is the daily bread of American pop culture. It rarely raises an eyebrow. But the use of “heart” by Barack Obama to describe his criteria for picking judges is troubling.

Speaking to Planned Parenthood just over a year ago, Obama said:

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 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.

Certainly, that empathy is desirable for anyone, simply as a human being. But what makes it a desirable quality for a judge or a Supreme Court justice? The phrase “sober as a judge” is a colloquialism for a reason. The senator implies that there’s something missing in the Constitution and our law that must be supplied by the heart – in other words, the empathy or caring of the judge. For him, the judge without “heart” cannot justly rule on cases about those who are gay, African-American, disabled, or “old” (whatever that means).

It’s particularly worrisome that Obama’s insistence on empathetic judges was aimed at the Supreme Court for upholding the ban on partial-birth abortion. During this horrific procedure, a doctor inserts scissors into a baby’s skull and suctions out the brain just before he or she fully emerges from the mother.

An empathetic judge, according to Obama, would have allowed doctors to continue this gruesome procedure. A judge with “heart,” presumably, would find the Born Alive-Infant Defined bill unconstitutional, allowing babies to die in hospitals without medical attention – surely the exact opposite of what most people mean when they use the word.

UCLA law professor Stephen Bainbridge describes Obama’s comment as an example of “how far left-liberalism has strayed from the rule of law.” Bainbridge reiterates the view that impartiality – not empathetic solidarity – is what makes a judge what he should be: a neutral arbiter.

For Obama, the “first postmodern candidate” for president, there is no such thing as neutrality before the law. All values, and all judgments based upon those values are the product of a struggle between groups as defined by race, class, and gender. The decision of the Supreme Court to uphold the ban on partial-birth abortion was wrong, according to Obama, because the justices ignored the perspective of women.

It seems that Obama believes that the law is about taking sides before you decide. As Professor Bainbridge puts it, “Settling upon a preferred outcome, without resort to the law, because it favors one group or another ought to be foreign to the judicial role.”

Obama’s support of gay marriage provides a perfect example of the problem. In his letter to San Francisco’s Alice B. Toklas Lesbian Gay Bisexual Transgender Democratic Club, Obama said he supported repealing the Defense of Marriage Act, passing the hate crimes bill, and opposed “the divisive and discriminatory efforts to amend the California Constitution.” He described LGBT rights as a “core issue” about “who we are as Americans.”

A President Obama will be nominating at least one Supreme Court justice, probably more. With a Congress very likely to be dominated by the Democratic Party, an Obama administration will be positioned to reshape laws and policies according to this postmodern vision.

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