Of justice and the fullness of hearts
By Michael M. Bates
web posted August 6, 2007
When Charles Schumer speaks, people laugh. Sadly, some folks also listen, possibly because he's the third ranking member of the Democratic Senate leadership. In that lofty capacity it's the New York solon's right, nay, responsibility, to chatter inanely.
Schumer recently warned that, unless there are what he deems extraordinary circumstances, he'll try to block any future Supreme Court appointments made by this president. So we have yet another reason to be thankful that Chief Justice John Roberts appears to be OK.
The Chief Justice and Justice Sam Alito, both of whom were nominated by the current President Bush, are the cause of Mr. Schumer's threat. He now says the Senate was "hoodwinked" by them. He's particularly miffed about Justice Alito. In addressing the American Constitution Society recently, Schumer said:
"Without question, my greatest regret in the 109th Congress was not doing more to block Alito. Alito shouldn't have been confirmed. I should have done a better job; my colleagues said we didn't have the votes, but I think we should have twisted more arms and done more."
Twisted more arms. Yep, definitely he's affiliated with the right party.
Liberals like Schumer often seem to believe that the judiciary's job is to make law. It isn't. That's the legislature's role.
Yet you wouldn't identify that important distinction in listening to them. At John Roberts' confirmation hearings, Schumer cited what he considered a deficiency in the nominee:
"First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all."
Compassion? Humanity? Fullness of the heart? Empathizing with those less fortunate? These could be admirable qualities if you're making laws, but they have nothing to do with determining the constitutionality of those laws.
Schumer's warped sense of the judiciary's purpose is shared by others who, unhappily, pass on Supreme Court nominees. In his opening statement on the first day of the Roberts' nomination hearings, Senator Dick Durbin of Illinois said: "In my view, that is the only proper test for a Supreme Court justice: Will he do justice without fear or favor?"
"Doing justice" may sound good, but it's no basis for what courts should do. The distinguished jurist Judge Learned Hand told of a pertinent episode with Supreme Court Justice Oliver Wendell Holmes:
"When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: ‘Well, sir, goodbye. Do justice!' He turned quite sharply and he said: ‘Come here. Come here.' I answered: ‘Oh, I know, I know.' He replied: ‘That is not my job. My job is to play the game according to the rules."'
The rules are established by the people and their elected representatives, not by judges. A judge's compassion, humanity, fullness of heart or empathizing with those less fortunate shouldn't enter into the equation.
One of Holmes' opinions noted:
"If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions of law."
Another ended with: "Apart from its bearing upon construction and constitutionality I am not at liberty to consider the justice of the act."
I can understand why liberals prefer judges who make laws rather than merely apply them. It's one way of getting around those pesky people who refuse to elect enough liberals to shove through their agenda.
Congress never passed a law legalizing abortion. The Supreme Court legislated that on its own. The Massachusetts legislature didn't authorize same sex marriages. The Massachusetts Supreme Judicial Court did. The people of Alabama, through their elected officials, didn't decide a Ten Commandments monument in the state's judicial building had to be removed. A federal court did.
Legislative consequences have been achieved when the legislatures failed to take the "correct" action. The will of the people has been thwarted.
Add to the Supreme Court another judge who doesn't view his role as super legislator, and it may routinely start using the Constitution as its guide.
No wonder Schumer is miffed. Those pesky people elected a president who appoints judges who believe judging, not legislating, is their principal function. Oh, the humanity! 
This Michael Bates column appeared in the August 2, 2007 Reporter Newspapers.