In a 2007 speech before Planned Parenthood, presidential candidate Barack Obama described his ideal Supreme Court justice as somebody who has "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." Legal scholar Richard Epstein thinks that that's a lousy way to pick a judge:
It might be smart politics for Obama to play to his natural constituencies, but intellectually there is, I think, no worse way to go about the selection process. Empathy matters in running business, charities and churches. But judges perform different functions. They interpret laws and resolve disputes. Rather than targeting his favorite groups, Obama should follow the most time-honored image of justice: the blind goddess, Iustitia, carrying the scales of justice….
I harbor no hope that Barack Obama will appoint someone who accepts my own judicial philosophy. But he is not likely to find the right pragmatic or principled nominee if he follows the standard he announced two years ago.
It's also worth remembering the judicial criteria that Obama laid out during the John Roberts hearings. Explaining why he voted against confirming Roberts to the Court, Obama listed a number of controversial issues where "what is in the judge's heart" should matter. He listed abortion and affirmative action, of course, but he also singled out the question of "whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce."
Obama was referring to the post-New Deal trend whereby Congress relies on its constitutional power "To regulate Commerce…among the several states" in order to pass legislation touching on every aspect of American life. As the law professor Randy Barnett has chronicled, by adopting the widest possible interpretation of interstate commerce, "courts have granted Congress a near plenary power to do anything it wills and have thus nearly destroyed the system of limited enumerated powers."
Which is precisely what the Supreme Court did in Gonzales v. Raich, the 2005 decision that struck down California's medical marijuana law in favor of federal anti-drug laws "tangentially related" to interstate commerce. That was a disastrous and deeply flawed ruling, yet it perfectly matches Obama's constitutional vision. But shouldn't he also make some room in his big heart for those folks using medical marijuana to alleviate their pain and suffering? And where's Obama's empathy for Charlie Lynch, a decent man who genuinely helped the sick by operating a perfectly legal (under California law) medical marijuana dispensary? Lynch faces spending the rest of his life in prison because Obama and others want the courts to allow Congress to have the widest possible regulatory powers. There's a word for that, but it's not empathy.