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President Obama proclaims he wants “empathy.” Senate Republicans say they want “no activists.” But what do young people want in the next Supreme Court Justice?
Well, it’s pretty clear what this generation doesn’t want President Obama to do. Millennials aren’t going to stomach any more Alitos. Or Scalias. Or Thomasas. This generation, which sees President Obama as a reflection of their pluralistic values, simply isn’t conservative, polls and attitudes show.
As much is clear to the Obama vetting team, but the lasting impact of his decision can’t be understated. The Millennial generation will live with the consequences of this judicial nomination for some time on cases that will profoundly impact our lives.
This Justice will be around for epic fights over the First and Fourth Amendments in the context of ever more invasive technology. This Justice will be asked to weigh battles over race and ethnicity in an increasingly pluralistic society, gender and marriage in an increasingly tolerant one, and sovereignty in an increasingly globalized and interconnected planet. Even today, there are cases coming before the Court that could dramatically alter the system of access to education in this country. Whether relating to affirmative action in higher education or school district zoning, cases in recent years have done little to clarify the fundamental racial and socio-economic constitutional issues involved.
This generation wants a nominee who knows that “justice” is an inherently communal concept. And, yes, as President Obama said, we want someone who has “empathy.”
President Obama’s buzz-worthy criteria, that some conservatives say is codeword for “activist judges,” really isn’t a new one at all.
No less a firebrand than Robert Kennedy, upon hearing the news of MLK’s assassination, calmed the flames of hatred by speaking of this type of empathy and justice:
“What we need in the United States is not division… but is love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country… Let us dedicate ourselves to what the Greeks wrote so many years ago: to tame the savageness of man and make gentle the life of this world.”
If you look closely, you see that Kennedy writes of justice as something that must reach out to those within the community. The Old Testament Prophet Amos had the same perspective in writing “let justice roll down like waters.” To the Greeks Kennedy studied, a crime was a rip in the fabric of society. To those at the time of Amos, sin brought further separation from God.
The undeniable conclusion? Justice is something that must be spread to all and make the community whole.
Now, you can quibble over whether Obama’s judicial philosophy is more legal realist or minimalist liberal instrumentalism, but you can’t deny that this president has lived for others and gets, at a guttural level, what empathy and justice mean.
We can be sure his Justice will too.
This empathy is crucial because most decisions of the Supreme Court aren’t as simple as they seem.
Brown v. Board of Education wasn’t an easy decision. A unanimous Supreme Court ruling for integration schools was hard to come by on the law alone. The Supreme Court had to twist, turn, and stretch the literal law through a tortured logic to get to the result in Brown. The key in this decision, and in many such profoundly important cases that come before the Court, was the Justice’s notions of the role of the Supreme Court in society.
In getting to the point where the Justices stood against much of society and brought integration forward, the Justice’s had to have empathy for those before the Court. The words of the 14th Amendment weren’t enough. The justices didn’t simply have notions about sociological jurisprudence, but they had a deep and abiding understanding for the people before the court and how the Court’s ruling would impact society.
Lastly, whether it be Elena Kagan or Sonia Sotomayor this generation is less concerned with the particular version of identity politics practiced in past confirmation battles.
Yes, Planned Parerthood, NARAL and the assorted alphabet soup of interest groups are out for themselves, but, and don’t take this as downplaying the effective coordinated campaigns, these efforts aren’t led by Millennials.
Millennials are not looking for someone with a certain hue or someone who can quote an eminent jurist by memory, but someone who has the empathy of iconic folk singer Woody Guthrie and who will affirm equal justice for all:
“In the squares of the city, in the shadow of the steeple/
By the relief office, I saw my people/
As they stood there hungry, I stood there asking/
Is this land made for you and me?”
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