Steven Calabresi envisions Obama's judges: Be afraid! Be very afraid!

Lawprof (and Federalist Society co-founder) Steven Calabresi has a WSJ op-ed titled "Obama's 'Redistribution Constitution'":

[That the new President will appoint many federal judges, including, probably, at least one Supreme Court Justice] ought to raise serious concern because of Mr. Obama's extreme left-wing views about the role of judges. He believes -- and he is quite open about this -- that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.

Speaking in July 2007 at a conference of Planned Parenthood, he said: "[W]e 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'm going to be selecting my judges."

Look closely at Obama's words. He is not saying that judges should distort the meaning of law so that people they empathize with can win cases. He's saying judges need to understand the realities of the world, most significantly, what life is like for people. That requires a quality of mind expressed by the word "empathy."

Law is not a verbal and logical abstraction. Statutes and constitutional provisions are written and voted on by people who have an understanding of the world and who mean something by what they write. Judges must try to understand all that. And law is applied to a set of facts -- it's actually unconstitutional for federal judges to decide cases that are not fact-based disputes -- and judges need to understand what those facts are. Judges therefore need the capacity to comprehend what it's like to be poor, or African-American, or gay, or disabled, or old. That is the empathy Obama cares about.

Now, judges also need the capacity to understand how business and economics work, to understand science and technology, and to fathom all sorts of other real-world facts that are implicated in legal cases. That Obama stresses one kind of understanding -- how oppressed, suffering, and unfortunate people feel -- does say something important. But it does not say that squishy feelings should replace legal analysis.

Back to Calabresi:

On [Obama's] view, plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.

As I've already explained, Obama did not say this. It may be that in close enough cases, a judge with a very specialized kind of understanding -- vividly picturing the suffering of the individual but numb to the realities of science and economics -- would tip toward personal injury plaintiffs, criminal defendants, employees, consumers, and so forth, far more than good legal analysis calls for.

But even if Obama were to inflict such lop-sided legal minds on us, if they were any good at all -- and I think he'd at least pick very high quality bleeding hearts -- it's still a big stretch to say they would usually decide cases in favor of the little guy. In fact, Obama is likely to pick extremely highly qualified persons who understand the broad range of factual realities implicated in cases, but who also have the quality of empathy that he prizes.

Now, Calabresi addresses that 2001 radio interview that we were taking about yesterday. He writes, correctly, that Obama said "that the U.S. Constitution as written is only a guarantee of negative liberties from government -- and not an entitlement to a right to welfare or economic justice." Note that Calabresi does not, like some others, assert that Obama said that the Supreme Court ought to have found affirmative entitlements in the Constitution. Calabresi nevertheless has a problem and even wonders "whether Mr. Obama can in good faith take the presidential oath to 'preserve, protect, and defend the Constitution.'"

Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare?

What? You can't take the oath to "preserve, protect, and defend the Constitution" if you support amendments? Well, then, strike any candidate who supports the Federal Marriage Amendment! The outrage of thinking that Article V of the Constitution can be used! I guess all the Founding Fathers who wanted a Bill of Rights were a bunch of traitors to the original document. How could Lincoln in good faith have taken the presidential oath if he wanted to see slavery abolished? I could go on. You get the point.

If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.

Obama has never proposed such things, and the idea is inflammatory and, frankly, silly. Do you realize how hard it is to pass a constitutional amendment? You've got to win in the legislatures of three-quarters of the states. How is there the slightest chance that could happen with the amendment Calabresi posits? Calabresi is trying to scare us.

I don't doubt that Obama will appoint liberal judges and that the Senate will approve them. But there is a limit to what judges can do, and if Obama appoints anything like the hemorrhaging hearts Calabresi envisions -- or pretends to envision to get you going -- there will be a mighty backlash. The Warren Court -- as Obama explained -- did not go all that far, yet its supposed excesses have been used for decades to argue for the appointment of conservative judges. Obama would be a fool to appoint extreme, left-wing judges, and I don't think he is a fool. But if he is, the GOP should take over Congress in 2010 and win the presidency easily in 2012.

IN THE COMMENTS: Simon says:

I think you misread Calabresi. In context, his parade of horribles seems to refer to what his judges will do rather than Constitutional amendments.

Calabresi talks about amending the Constitution and then shifts to that parade of horribles, but I agree -- you are right -- that he means to say that the judges may find these things in the existing constitution.

Or not find. When he worries about "the approval of huge punitive damage awards," he's upset that the courts might fail to find a constitutional right against them. Presumably, Calabresi would like to see more judges who have empathy for the difficulties of running a business.

AND: Simon reminds me by email that I posted about Obama's remarks to Planned Parenthood back on the day he made them. I said:

Speaking at a Planned Parenthood conference today, Obama was critical of the way Supreme Court confirmations only wade into the shallow water of character -- "He loves his wife. He's good to his dog."

He criticized Chief Justice John Roberts for saying "he saw himself just as an umpire":

“But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.”

Obama said that 95 percent of cases can be judged on intellect, but that the other 5 percent are the most important ones.

“In those 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

Hmmm.... you’ve got to look at what is in the justice’s heart. Great way to distinguish yourself from Bush!

I've known Harriet for more than a decade. I know her heart, I know her character. I know that Harriet's mother is proud of her today, and I know her father would be proud of her, too. I'm confident that Harriet Miers will add to the wisdom and character of our judiciary when she is confirmed as the 110th Justice of the Supreme Court.

But we know what this "heart" business means! It means that the President (or would-be President) understands that judging won't be neutral, that the human being doing the judging, no matter how dutiful and honest he tries to be, can only find his way to a decision in a complex case by responding to the pull of emotion. So "heart" matters. The question isn't whether "heart" counts. It's: which "heart" do you want?