The president and the high court

Last week Justice David Souter announced his intent to resign from the U.S. Supreme Court, giving President Barrack Obama his first opportunity to appoint a judge to the highest court in the land. In our constitutional system, the president has the power to nominate judicial officers, but U.S. senators review those nominations and may approve or disapprove of them. This check and balance is the process of "advice and consent."

This check may become very important in the coming days.

Recently, Obama repeated his commitment to his campaign standard for selecting federal judges. Stumping before a July 2007 Planned Parenthood conference, Obama 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."

Obama's appeal to "empathy" is not advocating appointment of jurists committed to Christian love of their neighbors as themselves. His message was code for his base. Translated: "I'm going to appoint judges committed to particular legal outcomes that favor categories of litigants on those issues that matter most to them."

The problem with Obama's decoded standard is that it is fundamentally at odds with judicial impartiality toward parties and the American ideal of the rule of law.

Courts hear disputes between parties with adverse interests. There are losers and winners. That context makes Obama's standard particularly troubling. When Obama is speaking about empathy, he is speaking in the concrete context of parties locked in legal disputes about which both sides care dearly. In deciding the dispute, the judge ought not be biased for either party on the basis of racial, sexual or any other status. Obama proposes jurists with a thumb on the scale.

Congress has recognized that our legal system requires outcomes on the basis of the law -- that is, authoritative legal texts and judicial precedent, not the party's status. Indeed, federal law obligates federal judges to take a judicial oath of office confirming this commitment: "I ... solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ... under the Constitution and laws of the United States. So help me God." The oath embodies the judiciary's independence not only from the other branches of government, but also independence from parties that may appear before it.

But that is decidedly not what Obama's standard calls for. His appeal to "empathy" is inconsistent with what most Americans want in a Supreme Court Justice. This approach is alien to many. According to this approach, the legal system is systematically racist and oppressive; the Constitution and other legal texts are indeterminate; justices are ideally noble guardians who are qualified and authorized to update the Constitution by judicial decree, under pretense of channeling evolving contemporary standards (as determined by the judge); and law is nothing more than the continuation of politics by other means. "Justice," according to this approach, is a collection of outcomes where favored groups win with the help of jurists committed to their victory. Absent is the traditional notion of justice as a process by which judges, acting as umpires, neutrally adjudicate disputes by resort to rules and standards embodied in the democratically enacted law.

If "We the People," as represented by the Senate, want to avoid judicial precedents that embody bias for certain types of litigants -- and by implication bias against other types of litigants, our best check is senatorial advice and consent. The stakes are high. The next justice will control a fifth vote on many significant issues and likely will occupy the office for the next two decades. That is a long time, particularly when the court writes with indelible constitutional ink. Amendments to the U.S. Constitution have overturned only four of the Supreme Court's prior opinions.

The only pledge, promise, or commitment that the president should seek, or that a federal judge should give, is to uphold "this Constitution," as required by the Constitution's Oath Clause. Our U.S. senators should reject any nominee who appears incapable or unwilling to honor that oath.

Tuan Samahon is an associate professor of constitutional law at the University of Nevada, Las Vegas, William S. Boyd School of Law. The views expressed are his alone.