On Obama And Judges

Some awfully smart people are going after Barack Obama for saying (gasp!) that a good judge has to be able to do the empathy thing. They claim that empathetic judges pose a risk to the rule of law.

Well, smart folks are occasionally wrong and this is such an occasion.

A good judge has to be able to see, understand, and sink his or her teeth into multiple perspectives in just about every case. Some people call this empathy. Some people call it judiciousness. It ain’t liberal or conservative per se.

The larger point is that Profs. Kerr and Bainbridge really aren’t concerned about the rule of law in this context; they’re concerned about the likelihood that a President Obama would appoint judges with whom they disagree. Liberal judges.

The Federalist Society has done a great job over the last 25 years convincing everyone that it’s liberal judges who are sacrificing the rule of law, who are the activists. This discourse has been politically successful, but it’s raised the stakes in an irresponsible manner.

We should all just get over ourselves. Republican presidents are supposed to appoint qualified conservative judges.* Democratic presidents are supposed to appoint qualified liberal judges. That’s just politics, not Armageddon.

*Our current President, regardless of how much you despise him, has been quite successful in this regard.