Placing Heart Over Head: Barack Obama's Search For A Supreme Court Justice

by Pejman Yousefzadeh on May 7, 2009

I referenced my latest article concerning the criteria the President is using in selecting a Supreme Court Justice in an earlier blog post. Related to my thesis, note Richard Epstein’s concern that Barack Obama is placing empathy as the chief qualification for the next Supreme Court Justice. Damon Root references Epstein in this excellent blog post. I’ll re-publish the excerpt Root published, which gets to the heart of Epstein’s critique of the Obama approach:

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.

As Root goes on to point out, when it comes to empathy, the President doesn’t practice what he preaches.

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