With Barack Obama getting ready to make his second Supreme Court nomination, we’re beginning to see a definite sign of what the president, a scholar of constitutional law, wants to see from the Court. The New York Times quoted Bill Clinton’s one time solicitor general Walter Dellinger as saying, “I think that, on choosing a Supreme Court justice, the president is less likely to compromise and more likely to go with his heart than on any other matter,” he said. And what does Obama’s heart say?
His comments on Justice Stevens’ retirement today give us a glimpse; Stevens’ replacement should have, according to Obama, “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the lives of every day people.”
Tellingly, that’s something pretty close to the qualities Obama wanted in a replacement for Justice Souter when he retired last year. The “effect the law has on everyday people” is beginning to look like an Obama doctrine.
When Souter retired, Obama said he was looking for someone “who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives.” That echoed comments he made on the passing of the Lilly Ledbetter Fair Pay Restoration Act just after he took office in January 2009: “Justice isn’t about some abstract legal theory, or footnote in a casebook – it’s about how our laws affect the daily realities of people’s lives: their ability to make a living and care for their families and achieve their goals.”
But this sense pre-dates his presidency. In the final presidential debate in 2008, Obama said he would ”look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.” Even back in 2005, when he was a Senator voting against the confirmation [PDF] of Chief Justice John Roberts, he was hinting at what become the “real world” doctrine:
"What matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of 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."
That empathy requirement has been criticised by conservatives. Senate Minority Leader Mitch McConnell said last year that it indicated Obama wanted to pick Justice’s on the basis of their ”perceived sympathy for certain groups or individuals.” Around the same time, Wendy Long, who clerked for Justice Clarence Thomas and was legal consul to the right wing Judicial Crisis Network, argued, “If you have empathy for both sides then that’s the same as having no empathy at all. So what he means is he wants empathy for one side and what’s wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law.”
Despite attacks like these, which will surely be repeated this time around, the Real World doctrine shouldn’t necessarily be a bad thing for the left. Conservatives have done well by pushing their strict constructionist and textualist notions of constitutional scholarship, even though these can often fail to be meaningful when applied to actual law. By seeking justices who understand “how the law affects the lives of daily people,” Obama is not saying that he expects the court to misinterpret or abuse the letter of the law; he’s merely saying that the law should not be, as the saying goes, an ass. Just as conservatives have succeeded by painting liberal judges as “activists,” Obama has the opportunity to succeed by portraying his nominees as people on the side of simple common sense. Few would argue, after all, that the law should be an ass.