Founding fathers? What founding fathers?

Friday, June 27, 2008

Promise me you won't swoon, but presidential contender Sen. Barack Obama recently proclaimed, "We need somebody who's got the heart, the empathy to recognize what it's like to be poor or African-American or gay or disabled or old -- and that's a criterion by which I'll be selecting my judges."

As with much of Obama's rhetoric, that sounds downright upright on the surface. No one wants heartless machines occupying our courtrooms. But Obama's ringing endorsement of activist judges overlooks the inconvenient fact that empathy is only one part of governing well.

Good parents empathize with their children; they remember what it was like to be young. They remember what it was like to dread inoculations. They remember the frustration of being told not to play on top of the ladder. They remember the humiliation of seeing other kids come to school with nicer things.

But part of being a good parent is having the guts to tell a self-absorbed child "This is for your own good" or "That's just how it is" or "Two wrongs don't make a right." The activist judges, on the other hand, don't know how to say "No" to a frivolous lawsuit; they salivate at the chance to bring about (drumroll, please) change.

It's ironic that the candidate whose supporters wanted a "rules is rules" approach to the disputed primaries in Florida and Michigan is disdainful of "strict constructionists." It's ironic that the people who want "separation of church and state" yearn to give lifetime appointments to individuals who will legislate, god-like, from the bench.

"Feelings" are to be paramount in deciding cases under an Obama regime. Forget about legal precedent. Get ready for the subjective eloquence of "Big companies are icky."

Yes, let's take into account the feelings of people who feel downtrodden or discriminated against or uncomfortable. Unless they feel uncomfortable while sitting helplessly as intruders ransack their home. ("C'mon, you folks have nine other amendments in the Bill of Rights. What's the big deal about the Second one?")

If Obama is elected, he'll have no qualms about saddling the rest of us with the arbitrary decisions of loose-cannon judges for decades to come. But would he risk his own safety for even one moment? Can you imagine him insisting that he wants Air Force One serviced only by personnel who will throw out the manual and play it by ear?

It's undeniable that some of these judges have delusions of grandeur. But (through a series of laws, rulings, and Constitutional amendments) the country has already decided the biggies, like "African-Americans are human beings" and "Women are smart enough to vote." The judges who hope to gain immortality by discovering some other untapped basic right are really going to have to do violence to our heritage.

Perhaps it's simplistic to insinuate that the activist judges make things up out of thin air.

They do have a habit of being ashamed of American law and shopping for an international law that tickles their fancy. ("Hey, guys, what did you bring back from your European vacation?" "I brought a figurine." "I got some Bavarian beer." "Well, at this quaint little bed and breakfast, I found this comprehensive plan for completely overhauling California's workers compensation system…")

At least eight years of Obama appointments would leave our National Anthem (relatively) untouched. "…the land of the free, and the home of the partial-birth gay marriage."