If you don't mind, I'm going to skip the preliminary bouts over which party is more hypocritical for switching its views on Supreme Court nominees. Democrats now insist that decency and precedent require Republicans to green-light anyone President Obama nominates to replace John Paul Stevens, and Republicans insist that there's nothing wrong with their adopting the tactics and standards advocated by Democrats--including then-senator Obama--when George W. Bush was in office.
Instead, I'd like to get to the heart of the matter. Obama and the vast majority of Senate Democrats believe that Lady Justice should peek from under the blindfold every now and then.
Obama opposed both of President Bush's Supreme Court appointees, John Roberts and Samuel Alito, presumably because they lacked what he called the "quality of empathy, of understanding and identifying with people's hopes and struggles." And in his run for the presidency, Obama said in 2007, "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'll be selecting my judges."
According to Obama--a former law instructor--in 95 percent of the cases, precedent and the law are clear enough for judges to go with the rules, but in the last 5 percent, judges have got to have a heart that bleeds for certain kinds of people.
Last week, the president offered a more populist spin, saying he wants a nominee who "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." The Associated Press calls this a "fight-for-the-little-guy sensibility."
According to Obama and countless other liberals, this sort of compassion in the law is "pragmatic" because it pays heed to the real world and real people as opposed to legalistic abstractions such as impartial justice. As former Boston Globe columnist Ellen Goodman put it last year: "I've never been sure why Lady Justice wore a blindfold as part of her permanent wardrobe. Yes, it's supposed to be a symbol of impartiality. But it does limit her vision a bit." For Goodman, the best judges reject the "myth" of impartiality.
Of course impartial justice is an abstraction, but it isn't so much a myth as an ideal. Since we are all designed from the crooked timber of humanity, we can only approximate perfect justice.
What I don't understand is why we should abandon an ideal simply because it is unattainable. If I can't be a perfect husband, should I get a divorce? If an umpire can't call each game flawlessly, should he stop trying? Maybe for 95 percent of pitches the ump should call 'em straight, but for the other 5 percent he should give the black or gay batters the benefit of the doubt?
In a country this vast, diverse, and dynamic, any judicial conception of the little guy is bound to confuse more than it clarifies.
For instance, liberals who like Stevens's rulings insist he understands the plight of the downtrodden, despite the fact that the nearly 90-year-old justice was born rich and has served on the court for almost 35 years, becoming more liberal as he has become more distant from life as lived by the little guys.
Meanwhile, Clarence Thomas was born dirt poor and black in rural Georgia and spends his vacations exploring America in an RV. But those same liberals insist he doesn't understand poverty and race the way Stevens does. How do they know? Because they don't like his rulings.
In other words, the empathy-for-the-little-guy standard is simply a Trojan horse for an approach just as abstract as any endorsed by the Right. In fact, I would say it's more abstract, because at least it's a text conservatives invoke--the Constitution--rather than the indefinable feeling of "empathy."
Unless the plight of every gay, black, poor, old, or disabled American is the same, then coming into court favoring a specific category of human being is nothing more than state-sanctioned prejudice.
The benefit of the ideal of impartial justice is that it provides a standard by which judges aren't asked to rule by prejudice. We'll never fully get there, but I don't think we should stop trying.
Jonah Goldberg is a visiting fellow at AEI.