The Constitution as Plaything

President Obama nominated Goodwin Liu to the 9th Circuit court of appeals. Mr. Liu is knd of dodgy:

Over the weekend, I offered my impressions of Goodwin Liu’s appearance before the Senate Judiciary. The portion of Lui’s testimony I was able to watch convinced me that the nominee was affecting a rather dramatic “confirmation conversion.”

Ed Whelan, having read the entire transcript, offers additional detail about Liu’s mock conversion. The nominee testified that judges should be “impartial, objective and neutral arbiter[s] of specific cases and controversies that come before [them].” The way the judge fulfills this role, Liu added, “is through absolute fidelity to the applicable precedents and the language of the laws, statutes, regulations that are at issue in the case.”

But Liu has written that “faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context.” And, in a perversion of Chief Justice Roberts’ famous baseball analogy, Liu has compared the role of the judge to the role of the renegade umpires who changed the strike zone “in response to changing aspects and contemporary understandings of the game.”

A judge who, in effect, changes the rules, in the name of paying attention to the evolving social context, by definition does not give absolute fidelity to the applicable precedents and pertinent statutory language. The fidelity instead is to the judge’s personal understanding of how the “social context” is, or should be, evolving.

Let’s see. First Obama wanted judges who had “empathy”, meaning they would not be strictly fair to all sides, but rather would prefer certain litigants, on the basis that some types of people needed to be given advantages in court cases because of their social status. In other words, Obama wanted the Democratic party constituents – women, minorities, etc. to be given preference in any court case.

That’s not the way we do things here in America. Rather, John Roberts had it right – they are there to call balls and strikes, period. Not to advance the social cause of one side or the other. That is for the legislature to do.

Now, Obama has changed it a bit. He says that he wants the courts to protect the little guy against the big guy. But then again, does he count abortion protesters as the little guy? No, I doubt it. Once again, he wants the Democratic party constiuency to be considered the little guy here. No preference for say, Tea party protestors, or second amendment advocates.

Preference for my side, says Obama.


Comments are closed.