Thursday, October 27, 2005

Senator Obama: You Gotta have Heart

This press release just in from Barack Obama, the Democratic Junior Senator from the State of Illinois:

Earlier this morning, the White House announced the withdrawal of the nomination of Harriet Miers to the Supreme Court.

This decision provides the President with a unique opportunity as he searches for a nominee to replace Ms. Miers – an opportunity to bring the nation together and name someone who has the qualifications, the experience, and the independence to serve the United States as a Supreme Court Justice. That is what the American people are looking for, and that is what our country deserves from a President who has often pledged to be a uniter, and not a divider.
[Emphasis Supplied].

Of course, the question for Senator Obama is- Didn’t the President do that when he nominated [now Chief Justice] John Roberts to replace Chief Justice Rehnquist? Didn’t [then judge] Roberts have the qualifications, experience and independence to serve as a U. S. Supreme Court Justice?

The junior Senator from Illinois determined that Judge Roberts didn’t make it through his confirmation filter. Senator Obama found Justice Roberts lacking in “heart,” as he would define it. When Senator Obama says “has the qualifications,” should he spell out that he means “heart,” as Obama would define it? Senator Obama was in the voting minority of his own party when he opposed Judge Roberts’ confirmation and in the 22% voting minority of the entire Senate opposing Roberts’ confirmation.

Of course, being in the minority on a vote doesn’t necessarily mean someone is wrong. Indeed, it was Thoreau who argued for civil disobedience by saying, “when the laws are unjust, the place for the just is in jail.” However, you have to wonder if Senator Obama’s “heart theory,” of Supreme Court nominee qualifications will survive the test of time. Or, whether it will even be repeated in his decision on the next nominee.

As I wrote in September [see here]:

In essence, Obama said, to be the Chief Justice of the United States, a nominee must pass the Obama ideological litmus tests by having a “heart,” that has historically held, currently holds and promises to hold in the future:

1. Affirmative action is an appropriate and Constitutional response to the history of race discrimination;
2. There is and should continue to be a Constitutional right of privacy for a woman to have an abortion;
3. The commerce clause of the Constitution empowers Congress to speak to issues of broad national interest that may be only tangentially related to what is easily defined as inner-city commerce; and
4. A person who’s disabled has the Constitutional right to be accommodated so that they can work along side the non-disabled.

With respect to each of the above constitutional questions, Senator Obama concluded, “the critical ingredient is supplied by what’s in the judge’s heart.”

Really, now. I would have thought that these are issues that should be decided based on a justice’s understanding and analysis of the Constitution, the laws of the United States, the precedent, the briefs and the arguments. That’s why students at the University of Chicago used to study the “Elements of Legal Reasoning,” as opposed to say, the “Elements of Legal Emotions.”

How will Senator Obama decide if the next nominee is qualified? Will he assess the ability of the nominee to engage in thoughtful, intelligent and judicious Legal Reasoning or will he judge her by the quality of her Legal Emotions? Well, Senator Obama has already told us,"You Gotta have heart."
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at