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Wednesday, May 6, 2009

More on Obama's Empathy Criteria

Bench Memos, a great law blog at National Review Online, takes on Wash. Post writer Ruth Marcus for her defense of Obama's view on how to select judges.

Excerpt 1 - Ruth Marcus’s Misguided Defense of the Obama Standard by Ed Whelan:
If the “right answer” on a constitutional question isn’t “available to a judge who merely thinks hard enough,” one obvious alternative to the judge’s indulging his or her own values—the alternative that judicial restraint requires—is to defer to the democratic enactment. In other words, if a judge can’t say with requisite certainty that an enactment is unconstitutional, the judge shouldn’t use his or her own values as some sort of tiebreaker.

Marcus states that “[a]ll judges are guided to some extent, consciously or unknowingly, by their life experience.” The question is whether they should exercise the discipline to be as dispassionate as possible or should instead indulge their passions.
Excerpt 2 - Re: Ruth Marcus’s Misguided Defense of the Obama Standard by Matthew J. Franck:
Of course judgment is not mere calculation. But it is disciplined thinking, something no computer can or ever will do, and Marcus and Obama are, at bottom, opposed to discipline. A proper "conception of the role of courts" would rule out of order any place in judicial decision-making for what the president calls a "broader vision of what America should be." Beyond the bounds of the Constitution, statutes, and precedents, there is nothing judges have to say about the great Oughts of American life that the rest of us are obliged to pay the slightest heed. We don't put them on the bench for their views on such matters, and heaven knows we can't easily remove them for their bloviations on such subjects.
I have little doubt whoever Obama chooses will incur a flurry of defense from the left and a storm of criticism from the right, unless he ends up choosing a judge more center than left.

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