Bench Memos

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Obama Sticking with Lawless Empathy Standard


In defending the first Obama federal appellate court pick at Tuesday’s White House press briefing, spokesman Robert Gibbs cleared up any doubt as to whether the president was sticking with the lawless standard for evaluating judicial nominees that he articulated on the campaign trail (and that he invoked as a senator to filibuster Justice Alito and vote against Chief Justice Roberts). The president believes “that there are cases, particularly at this level” — presumably the appellate level, meaning the Circuit Courts of Appeal and the Supreme Court — “that your own empathy and value system leads you to make a conclusion one way or the other.” This tacit admission that the ACLU values of 7th Circuit nominee David Hamilton were a reason for his selection should be a problem for the vast majority of Americans, who disagree by a margin of 3 to 1 with the Obama standard that judges should decide the most controversial and important constitutional and statutory cases based on their own personal “value system” and “empathy” for certain types of litigants (i.e., the ones favored by the ACLU).  

Judges should follow the law in deciding cases — not their own values, good or bad. And if they don’t decide cases on the law, as Senate Republican Leader Mitch McConnell has pointed out, they will have a hard time keeping their judicial oath of office.


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