As regular readers know, the primary focus is about proper interpretation of the Constitution, specifically the First Amendment's Religion Clauses. Much of the trouble started with the Everson decision in 1947 (discussed elsewhere on this blog). In that decision, the Court gave "new meaning to the First Amendment" (a phrase the ACLU uses to describe that decision: see this post). Giving "new meaning" to the Constitution is not part of the intended role of the Supreme Court.
In the article Constitutional Myths and Realities by Stephen Markman, Justice, Michigan Supreme Court (found here), the author says:
"Justice Felix Frankfurter once remarked, "The highest example of judicial duty is to subordinate one’s personal will and one’s private views to the law."
...
"I would borrow the description of the judicial power used by Chief Justice John Marshall, who 200 years ago in Marbury v. Madison stated that it is the duty of the judge to say what the law is, not what it ought to be (which is the province of the legislature)."
Given that, and given the fact that President Obama is supposed to have been a Constitutional Professor, consider his own words on his criteria for a Supreme Court justice:
"I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient at arriving at just decisions and outcomes."
I hope as human beings we all have empathy and understanding for those who struggle just to survive in life. I hope our Supreme Court Justices share that trait. However, it is not an essential criterion for choosing a Justice. Their job is to decide based on the merits of the case compared to existing law, precedent, and the U.S. Constitution (and possibly state constitutions). Personally, I would like to see a Justice who is a good family man or woman and who has a strong religious faith. But that would not necessarily mean they would know the Constitution and precedent. This fine person I would like to see there could be totally wrong in decisions if they rely on their empathy instead of what the Constitution specifies. The Constitution might be better served by a complete jerk who really knows law and the Constitution and who makes decisions on that basis only.
The Court changes their collective mind from time to time. The Supreme Court said in multiple instances that this is a Christian nation (all the way up through the 1930's). Then in 1947 we get a decision that religion is to be isolated from government. Or consider the fact that for years the states could decide about abortion law. Then the Court decided it was a federal matter because of the right of privacy. If the court had one or two different Justices in place, Roe v. Wade might be overturned the next time it comes up. So which way is right? I submit that many of these decisions are less likely to change back and forth if the Court uses the yardstick they are supposed to use - the U.S. Constitution.
We need to remember that opinions, empathy, etc. DO come into play when Congress makes laws. That is the place for such considerations. The U.S. Supreme Court should look at such laws based on whether they are Constitutional, not on whether they are desirable.
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Additional: Obama said that his choice would know "that justice isn’t about some abstract legal theory."
Read more on the site for the Washington Examiner
Also consider Thomas Jefferson's words:
"It has long been my opinion, and I have never shrunk from its expression,... that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary--an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed." --Thomas Jefferson to Charles Hammond, 1821. ME 15:331
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