BY FLOYD AND MARY BETH BROWN
Syndicated Columnists

As President Barack Obama sees it, Lady Justice should be peeking out from underneath the blindfold when she makes legal decisions.

Lady Justice is often depicted wearing a blindfold. This represents the traditional American belief that all should be equal before the law. Justice is — or should be — meted out objectively, without bias, favor or fear, regardless of power, weakness or identity.

Barack Obama doesn’t agree justice should be blind. He looks to replace retiring Justice David Souter on the Supreme Court with a judge whom he says has “empathy and understanding.” Other criteria he wants in a jurist is “somebody with a sharp and independent mind “(code for a willingness to buck tradition), “and a record of excellence and integrity.”

In blunt words, he wants an activist judge.

The term “judicial activism” first surfaced in a 1947 article written by Arthur Schlesinger, Jr. for Fortune magazine. He divided the Supreme Court Justices of his time into three groups based upon their level of activism: the Judicial Activists, the Judicial Self-Restrained, and those falling in the middle.

The Judicial Self Restrained are also called Strict Constructionists and they insist on a close reading of a document, whereas loose constructionists are open to self re-interpretation of terms so as to achieve, as they see it, the purpose of the document.

In his 2006 book “The Audacity of Hope,” Obama wrote, as president, he would not appoint a strict constructionist to the Supreme Court: “Some, like Justice Scalia, conclude that the original understanding must be followed and if we obey this rule, democracy is respected. Others, like Justice Breyer, insist that sometimes the original understanding can take you only so far — that on the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. I have to side with Justice Breyer’s view of the Constitution — that it is not a static but rather a living document and must be read in the context of an ever-changing world.”

During his campaign, Obama directly spoke about activist judges: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criterion by which I’ll be selecting my judges.”

When explaining his vote against [Supreme Court Nominee John] Roberts, Obama suggested that deciding the “truly difficult” cases requires “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.” Adding that “the critical ingredient is supplied by what is in the judge’s heart [not the Constitution].”

Liberal, subjective reading of the law allows for the courts to be a captive of public opinion. The genius of America’s founding was the protection of individual rights from the hysteria of the mob.

With President Obama’s appointees being activists on the Supreme Court, there is reason for concern. “Where typically Lady Justice is blind and only takes objective facts into consideration, disregarding the position and the opinions of those committing the crimes, she may now apply the law unequally and selectively,” said writer Thomas Landen. “Our societies subsequently risk losing an important principle of Western law, viz. equality under the law.”

Writer Thomas Sowell contrasts the empathy Obama seeks in his judicial appointees with the “rule of law” which he argues is critical to this country. Sowell argues, “[I]f someone was a member of groups of X, Y, or Z and they were to appear before a judge with empathy for groups A, B, and C, that would go against the idea of the ‘rule of law.'”

Choosing judges is one of the most important jobs a president has, with long-lasting ramifications. Just look at the U.S. District judge Bill Clinton chose while president who recently released Guantanamo Bay prisoners into Washington, D.C.

So-called hate crimes bills make the risks to individual rights even greater. Shortly after they came into office, Obama and Biden announced they want to “strengthen federal hate crimes legislation, expand hate crimes protection by passing the Matthew Shepard Act, and reinvigorate enforcement at the Department of Justice’s Criminal Section.” This will make penalties for crimes different based of a subjective evaluation of the criminals’ motives.

In regards to activist judges, Thomas Landen says, “Prosecutors and judges are no longer interested in what actually and objectively happened. Instead they focus on the intentions which they claim motivated those who acted. No longer is Lady Justice blind to anything except the facts; she is blind to the facts, but claims to be a clairvoyant about everything else.”

The U.S. Senate would be wise to have a true debate about these issues during the upcoming confirmation battles.

©2009 Floyd and Mary Beth Brown. The Browns write a national weekly column. See more at Floyd’s blog at www.2minuteview.com. To comment on this column, e-mail browns@caglecartoons.com.