18 June 2008

Say Again, part I

I know the presumptive presidential nominee for the Democratic Party has a significant following and may very well win this November. Personally, I had been leaning towards McCain for any number of reasons--on which, more later. I voted for Ron Paul in the primary and consider myself libertarian. I agree wholeheartedly with Thoreau that that government governs best which governs least, especially the federal government.

That all being said, I don't dislike Obama (I also don't dislike McCain, so I'm ahead of the game considering the last three presidential elections). I think his "change" rhetoric is getting a little tired, but the same could be said for any of the major candidates this year (McCain, Clinton, Romney & Huckabee).

A friend of mine is an Obama supporter (and quite possible the only person who reads this page) and he asked for whom I would be voting--this was before the primary. I told him Ron Paul and gave a few reasons. McCain had the Republican nod wrapped up and there was still a contest on the Dems side. I also told him that I wanted to wait and see and read more on Obama. I also said that there was no way in hell I would vote for Hillary. Maybe if Bush ran again, but I swoon at the thought of that scenario.

I have read some things by and about Obama and I'll say right here that I don't care about his wife or his pastor(s).
I do care about how a president sees his role in our government and the government's role in the lives of the people. And based on recent statements by Obama, I cannot vote for him.
Recently he gave a speech that touched on his view of the judiciary. I cannot find the speech, but a good (but very limited) synopsis of his views (juxtaposed (poorly) with McCain's) is here. In the article he says, regarding Supreme Court justices, "I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through." Now, its just dandy to have empathetic judges, so long as their empathy doesn't interfere with their job. He mentioned in his speech the case of Ledbetter v. Goodyear. He over-simplifies the case and reduces the majority opinion to a lack of heart and disregard for legislative intent. I don't want to get too far into it (see here and here for some good background). The legislature was quiet on whether each paycheck represented an act of discrimination under Title VII. The court held that the discriminatory act was her employment review which was more than 180 days prior to her complaint. The 180 day time-frame was set by the legislature, not some heartless judge. The plaintiff (petitioner) would have had recourse under the Equal Pay Act.

I agree with Justice Antonin Scalia's view of how judges should read the law ("reasonably," a fantastic primer on this is A Matter of Interpretation--I cannot recommend this book highly enough--see also here). Judges should read and interpret the law; not what the legislators intended to say, what they did say--and, of course, whether they have the authority to say it at all.

To use this decision as a cudgel, to try to make a point that Justice Ginsburg is your ideal based on this case is, in my opinion (non-lawyer that I am), a mistake.
I disagree with Barack Obama's view the the federal judiciary should base its decisions on "empathy," or with "feeling for what the ordinary people are going through." This is an invitation for the judges to make law. In our system, that is not their purview.


No comments: