Views Of an Obamacon

TW: The second part of the Kmiec interview that I plucked focuses on the Supreme Court. My cynical view on SCOTUS nominees is that folks are going to create "doctrines" (i.e. constructionism, originalism etc.) that sound sophisticated and complex, but those are means to an end. Conservatives politicos (and their progressive counterparts) do not particularly care about the doctrine they care about the results. At the end of the day everyone wants empathy as in empathy for their views.

From Economist:
DIA: During the presidential campaign you noted Mr Obama's affinity for Supreme Court justices like Stephen Breyer and David Souter. Would you be able to support an Obama nominee in their mould?
Mr Kmiec: Barack Obama did mention during the campaign that he admired Justices Breyer and Souter. His reasoning was anchored in their unwillingness to be slavishly bound to the historic meaning of constitutional terminology, and their understanding of the great charter in terms of its ability to resolve modern problems.

Mr Obama also said he would look for the quality of empathy in his judicial selections. The president, I believe, uses the term to convey that justices should be impartial, but not indifferent. Law and adjudication is not just a mental exercise in doctrinal neatness. An Obama nominee should be capable of understanding the real-life consequences of judicial outcomes, especially for those who are least advantaged. This is refreshingly attractive and informs Mr Obama's desire to nominate justices with a broader life experience than one spent largely in a classroom or appellate courtroom.

Based upon his years teaching at the University of Chicago, I'd look for Mr Obama to favour a nominee who is not afraid to challenge either some result-oriented liberal judging or the incompleteness of the conservative method that has dominated the court since Nixon appointed Warren Burger to the bench in 1969. Burger, and especially his successors William Rehnquist and Antonin Scalia, have plied the notion–so-called Originalism–that it’s not up to them to do justice, since they are just following the plain, public meaning of the words ratified two hundred plus years ago. 
 


...plain public meaning is a beguiling idea, until one actually looks for it. There was no single public mind in 1787 any more than there is now. Back then, public meaning was no doubt very much like it is today: an admixture of both shared and different conceptions of what a given constitutional phrase was intended to accomplish. Mr Obama’s task is to find a jurist who not only comprehends the limits of James Madison’s dictionary, but also appreciates how real wrongs can be made right with words that have a meaning in the here and now.

Mr Obama’s campaign prided itself on supplying the “change we need”. It is well past time that legal insights are acknowledged to be possessed by those possessing something other than the standard resume. There is reason to believe that the ultimate “justice” and accountability derivable from the court’s work would be enhanced by appointing individuals of more varied background: a woman, say, who interrupted law practice to raise a family before returning to the profession; or a sole practitioner who has borne the burden of navigating a family through foreclosure or bankruptcy..."