The Pity of Obama's Judicial Doctrine

Supreme Court Justice David Souter's impending retirement has triggered another tired debate over whether Barack Obama, in the President's replacement choice, will finally reveal his essentially moderate, pragmatic, and bipartisan proclivities.  Based on his "get in their faces" style of governing over the last 100 days however, Mr. Obama will probably select a jurist bearing radical and divisive credentials.

If Obama's campaign promises last year are to be taken seriously, here is what the current president intends to use as a litmus test for filling vacancies on the court:

"We need [judges] who've 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."

"In cases that really count," said Senator Obama, judges need to consult their hearts and "their broader vision for what America should be."  Similarly, Obama rejected current Chief Justice John Roberts' nomination to the Supreme Court because Roberts, in his opinion, had "used his formidable skills on behalf of the strong in opposition to the weak."

What all of this suggests, however, is that in addition to Obama's severely myopic understanding of the American legal tradition, the current president once again is demonstrating his breathtaking arrogance with respect to the Constitution.  Nowhere in the Constitution does it state that a judge should favor the poor over the rich -- or the weak over the strong.  This kind of social justice ideology is simply pure, unadulterated Marxism from the former professor of constitutional law.

Digging deeper into Obama's "vision for what America should be" reveals a disturbing penchant for automatically anointing America's "underdogs."  This rather naïve and chilling vision of social justice is just another example of our president's alarming and self-conscious neglect of the wisdom of history.  It is also another sign of Mr. Obama's pathological narcissism.  Lenin and Mao were once underdogs too.

A few thousand years ago Moses wrote in the Book of Exodus, "You shall not favor a poor man in his lawsuit."  To believe that in the application of justice empathy trumped impartiality was to undermine the solidarity of the fledgling Hebrew community.  In fact, much of the Torah is a textbook on how to cultivate and maintain community cohesion.  Did the Reverend Jeremiah Wright skip that sermon?  Did Obama the community activist sleep in that day?  Whatever the case, it seems obvious that Mr. Obama's communitarian vision will probably give way to the more divisive social justice ideology.  

About a millennium after Moses transmitted the Law to the Hebrews, a community activist in ancient Greece, Aristotle, was also busy contemplating the problematic effects of favoring empathy and pity in the courtroom. Aristotle wrote in his Rhetoric that although pity was a natural human emotion it was quite dangerous when the objective was to sway the opinion of judges in a lawsuit.  For Aristotle, the use of pity by a jurist would "be like making the rule crooked which one intended to use."  The law should be applied impartially, not bent to favor the underdog.

On a broader level, Aristotle famously noted in his Politics that due to its unhealthy leveling tendencies, a democracy eventually begins to favor "the interests of the poor" which, counter to popular belief, actually damages "the common interest."  In other words the poor, like the rich, can be driven by self-interest even if it damages the general welfare.  For Aristotle, those in the middle class have the broadest vision and the most virtuous ranking of priorities and desires:

"The middle classes enjoy a greater security themselves than any other class.  They do not, like the poor, desire the goods of others; nor do others desire their possessions, as the poor desire those of the rich, and since they neither plot against others, nor are plotted against themselves, they live free from danger."

According to Aristotle virtue is located in the mean, not on either extreme of poor or rich.  The poor often envy others and the rich might pursue wealth far beyond any natural limit.  As a true conservative, Aristotle understood that the good life required setting proper limits.  Therefore, those best able to rule society were those in the middle class -- they demonstrated the most restraint both mentally and materially.  Their wider vision was more likely to produce good and balanced legislation compared to the more narrow designs of either the poor or of the rich.

Aristotle's warning about the leveling tendencies inherent in democracy was echoed by an older Athenian contemporary commonly referred to as the "Old Oligarch."  Nobody is quite sure of the precise identity of the Old Oligarch, but there is no doubt about his distaste for a political system that often punished the talented in the name of the underdog.  In his Constitution of the Athenians the old curmudgeon says:

"About the political system of the Athenians, that they actually chose such a system [democracy] -- I don't congratulate them for it.  For in so choosing they have chosen that people of no account do better than people of merit."

Indeed, for democrats to reward the meritorious would be to "strengthen that which is opposite to themselves, and for every country that which is best is antithetical to democracy."  And while the populace demands to be represented equally in all public offices, "such offices as bring safety if they are in meritorious hands -- and danger to the people if they aren't -- the general populace feels no need to participate in."

Simply put, those who wish to level society and crush merit based modes of achievement stop well short of those occupations necessary for national survival:

"That is, [the populace] doesn't think it has to participate through lottery in generalships or cavalry commanderships.  For the populace recognizes that there is more advantage in not exercising those offices itself but for those to exercise them who are most able to."

Barack Obama's "broader vision of what America should be," in other words, will probably stop well short of the military (or the NBA for that matter), whose effectiveness and success depends on objective standards of measurement, not on pity or on empathy.  But when President Obama cozies up to dictators and tyrants in Latin America and the Middle East, and shows his disdain for Britain and Israel, he is, in the words of the Old Oligarch, siding with the worst people:

"For if [he] sided with the best people [he] would side with those who don't see things the way [he] does."

To automatically assume that the poor, the African-American, the gay, the old, or the Palestinians for that matter, have some superior claim on America's moral capital simply because they are the "underdogs" is to demonstrate a tragic misunderstanding of what constitutes justice, virtue, or community solidarity.  Chief Justice John Roberts, in other words, was indeed the best choice for America, but for Senator Obama to confirm his nomination would have been to "side with those who don't see things the way he does."  For Obama, justice means always siding with the underdog, not the most qualified -- even if it means destroying the community in the process.

As we've seen, many in the ancient world would attribute this kind of thinking to a leveling tendency inherent in democratic forms of government.  Others might say that Obama is simply a product of a progressive education system and we'll have to endure his myopic "class struggle" perspective for the next four years.  We can probably conclude with certainty however that Mr. Obama's academic record, like himself, is heavy on the Marx and light on the Classics.

As to the merits of being poor or rich, perhaps we should leave the final word to someone who simply favored the virtuous, Confucius:

"Riches and position are what men desire.  If their attainment is to be by departing from the Way, do not have them.  Poverty and lowliness are what men hate.  If their abandonment is to be by departing from the Way, do not abandon them."

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