Wednesday, March 28, 2012

Justice of the Heart

I’ve been listening to bits and pieces of the Supreme Court hearings on the legality of Obamacare the past three days. Overall I’ve been impressed by the level of intellectual acuity displayed by the lawyers and the Justices. The complex arguments and theories and recall of minute facets of past precedents and their implications, often times I have no idea about what they’re saying or why. That’s my gold standard for recognizing some sharp thinkin’ and cipherin’ in others.

Maybe I’m so impressed because I’m used to watching the deliberations of another foundation of our federal government, the legislative branch. When watching the US Senate or, especially, the House on CSPAN, moments of keen intellectual acuity are fleeting and far between compared to the oceans of time devoted to high demagoguery and low comedy.

For example, from earlier today in the House, instead of say, discussing the implications of putting the country in debt to the tune of $15 trillion, this was the business of the day:

Compared to this, you can see where an arcane argument over the Anti-Injunction Act of 1867 is so exciting and refreshing.

There was one marked departure from the high minded debate of the Department of Health and Human Services vs. Florida on Monday. Despite her rookie status, the Court’s newest Justice, Sonia Sotomayor was quite verbose. And for the most part she sounded impressive (that is, I had no idea what she was saying or why). But at one point she diverted into an unconventional line of questioning, given the fact that the point of the hearing was to determine whether a Federal law is Constitutional or not. From the transcript:

JUSTICE SOTOMAYOR: Do you think that there's — what percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance — do you think there's a large percentage of the American population who would stand for the death of that child … They had an allergic reaction and a simple shot would have saved the child?

What percentage of the American people would stand for the unjust death of a child? Well, what percentage voted for John McCain in 2008? (This urge for sarcastic, damaging responses largely keeps me out of Supreme Court proceedings).

Maybe there’s some arcane Constitutional nuance I’m missing that justifies this question, but in context, it seemed incongruous. The lawyer representing the plaintiffs, Michael Carvin, explained that it was a flawed premise. Invalidating Obamacare does nothing to change laws requiring emergency rooms to treat all patients, regardless of insured status. Perhaps he was about to ask why that question has any bearing on the merits of this lawsuit, but Justice Sotomayor interrupted him in the middle of his response to ask a different question.

The nature of this question, and it’s emphasis on feelings and popular opinion rather than legal precedent reminded me of something candidate Barrack Obama said about the qualifications for any Justice he nominated. This speech was made before the Planned Parenthood Action Fund, July 17, 2007:

... what you’ve got to look at is — what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And 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 criteria by which I’ll be selecting my judges.

Mission accomplished, Mr. President.

If he gets a few more chances to name Supreme Court Justices, the quality of hearings may yet resemble the madcap antics of CSPAN2.