The Right Person for Judiciary

Sen. Jeff Sessions’ (R-Ala.) recent piece on the Washington Post titled, “The Right Person for the High Court,” demonstrates why he is the right person to be Ranking Minority Member of the Senate Judiciary Committee. Simply put, he gets it.

Here is what he expects from President Obama’s Supreme Court nominee: 1) A highly qualified individual, 2) a distinguished record, 3) demonstration of judicial restraint, 4) integrity, and 5) a commitment to the rule of law. It would be very difficult, he points out, “if the president nominates an individual who will allow personal preferences and political views to corrupt his or her decision making. …”

Compare this clear, coherent, concise, constitutional approach to the selection of a nominee with President Obama’s famous “empathy” standard. Here is what he said when explaining his vote against Chief Justice Roberts:

Then Senator Obama: “[W]hat matters on the Supreme Court is those five percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy. … [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

He also famously told Planned Parenthood in a 2007 speech:

“[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’ll be selecting my judges.”

President Obama seems to be looking for a social worker instead of a justice for the Supreme Court of the United States.

Those on the left have tried to mock conservatives for taking this “empathy” issue too seriously. I have even heard several conservative leaders say that, in some ways, they agree with Obama: “[I]t is a good thing for anyone to be empathetic,” they say. But what they don’t understand is that to the President, this is not just “a good quality for a judge to have.” It is the litmus test by which he selects nominees, to the exclusion of the characteristics mentioned by Sessions.

President Obama has not only verbalized this, he has applied it. Here is how he described Chief Justice Roberts, whom he still voted against:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. (Emphasis added)

But he didn’t. He did not vote for Chief Justice Roberts because, although Roberts met Sessions’ standard, he didn’t met Obama’s “empathy” litmus test. Apparently, President Obama would reject a nominee who has respect for the law and impartiality in favor of one who does not respect the law but who is a minority, or was poor, or maybe is “gay” or has “gay” friends.

We should be thankful that Sen. Sessions is now positioned to exert influence in the nomination process. He said, “The Republicans’ role in the Senate’s exercise of its constitutional power to advise and consent will be to see that fair and rigorous hearings determine whether the president has selected a nominee who respects the Constitution or one who intends to rewrite it.”

And that is the real danger: judges who see their role as progressive agents who need to “help” the country move from the old antiquated ways of our Founders, who gave us liberty, to a more politically correct, “modern, sophisticated, tolerant and inclusive society.”

His presence and new role in the Senate Judiciary Committee can give us some hope that the constitutional process will be guarded throughout the confirmation process. The American people are the real winners with Sessions as ranking member in preparation for the retirement of Justice David Souter this June.