With Senate Minority Whip Jon Kyl saying on "Fox News Sunday" that he intends to filibuster any Supreme Court nominee who has the slightest hint of empathy, which the Arizona Republican considers to be "outside the mainstream" of American jurisprudence, I thought I'd give him a little flashback. Here is then-President Bill Clinton in 1993 talking about his criteria for choosing a Supreme Court Justice:
"I think that there are few decisions a President makes which are more weighty, more significant and have greater impact on more Americans than an appointment to the Supreme Court," Mr. Clinton told reporters during a visit to Atlanta. "And I'm going to try to pick a person that has a fine mind, good judgment, wide experience in the law and in the problems of real people and someone with a big heart."
A big heart? Uh oh! That's an extremist!
Rewind to 1990. Here is an excerpt of then-1st Circuit Judge David Souter's opening statement to be a Supreme Court Justice:
The first lesson, simple as it is, is that whatever court we are in, whatever we are doing, whether we are on a trial court or an appellate court, at the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do, whether we do it as trial judges or whether we do it as appellate
judges, as far removed from the trial arena as it is possible to be.
The second lesson that I learned in that time is that if, indeed, we are going to be trial judges, whose rulings will affect the lives of other people and who are going to change their lives by what we do, we had better use every power of our minds and our hearts and our beings to get those rulings right.
Use our hearts and our minds to decide cases? No good!
Now fast forward to 1994. Here is then-1st Circuit Judge Stephen Breyer at his Supreme Court confirmation hearing:
Law requires both a heart and a head [sic]. If you don't have a heart, it becomes a sterile set of rules removed from human problems, and it won't help. If you don't have a head, there's the risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse.
This so sounds like an activist judge! Empathy? Extremist!
Now here is Washington Post columnist Colby King in 2005 describing why a Supreme Court nominee's values matter:
Lawyers and jurists such as that -- John Davis and Robert Bork (and possibly Chief Justice John Roberts and Judge Samuel Alito?) -- are brilliant and have a feeling for the law. But what about a feeling for justice? Do they even see injustice? And if so, do they believe that the power of the Supreme Court should be used to remedy injustice? Do they read the Constitution generously?
Missing from the litany of legal virtues approved by the [conservative] high priests is any expression of values, any awareness of the court's leavening role in society, any recognition of the court as a bulwark against the majority's worst instincts. They seem to think it wrong for a judge to search for a constitutional way to "to help, or at least protect, those [who] have a moral claim on the society," to use The Post's language in a second editorial on Bork that year.
Those values were lost on the defenders of segregation, who undoubtedly were professionally qualified and faithful to their profession's ethical standards. Lost on those standard-bearers for racial separation, however, was how much the outcome of what they sought to achieve in court really mattered to people for whom the Bill of Rights and the 14th Amendment still lacked fulfillment.
What about justice? What about relief?
Notwithstanding the norms of the high priests of conservatism, prospective Supreme Court justices, I humbly submit, must be judged as well by the values that they bring to bear.
Or as Stanford Law Professor and potential Supreme Court nominee Pam Karlan put it two years ago in her rather humorous Yale Law School commencement speech:
Justice Scalia is only partially right when he says that the rule of law is a law of rules. It has to be more than that. The great Mexican revolutionary Benito Juarez explained his plans when he became president this way: "For my friends, grace and justice; for my enemies, the law." He understood the difference between law and justice. It’s important to see that if the rules are not just, then the law of rules is just not a rule of law. Just rules are not just rules, if you know what I mean ... grasshoppers.
Unlike Jon Kyl and Republicans, we Democrats don't believe the Supreme Court is, to quote Ted Kennedy at Justice Kennedy's confirmation hearings, "merely a tribunal for the intellectual resolution of lawsuits." We Democrats don't believe that we human beings are just pawns to the Supreme Court's intellectual theories. We believe that the Supreme Court is there to provide a check on the majority's worst excesses, and using the Constitution as a weapon, provide justice and relief to those who have lost out on the democratic back-and-forth and been victims of injustice in order to protect human dignity in an everchanging world.