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Saturday, March 08, 2008

Obama's potential judicial appointments

The rest of the article is definitely worth reading too, but in two concise paragraphs, Ed Whelan gives us the essential things we need to know about what kind of federal judges a President Obama would appoint (emphasis Ed's):

Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "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." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: "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." So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

If you like your constitutional law bold, sweeping, and thoroughly disconnected from anything actually written down in the Constitution or imagined by its Framers, then you'll like Pres. Obama's judicial picks. If you like your law served up by a court instead of by Congress or a state legislature, then you'll like Pres. Obama's judicial picks. If you want vast and mysterious power concentrated in a handful of unelected judges whose behind-closed-doors deliberations will turn their own policy preferences into holy writ, changeable only through constitutional amendment (or a thorough overhaul of SCOTUS membership and then its recent precedents), then you'll like Pres. Obama's judicial picks. If you see stare decisis as a ratchet wrench that only permits torque in the direction "lefty-loosey," then you'll like Pres. Obama's judicial picks. If you want federal courts to disrespect and ride roughshod over their state-court counterparts, then you'll like Pres. Obama's judicial picks. If you want a heavy thumb on the defendants' side of the scales of justice, with no counterbalance for victims' rights or the public interest, then you'll like Pres. Obama's judicial picks. If you want even our foreign policy and the Global War on Terror micromanaged by the federal judiciary, then you'll like Pres. Obama's judicial picks. If you want American law to kowtow to and adopt wholesale from judges and courts you've never even heard of that sit in Brussels, The Hague, or Geneva, then you'll like Pres. Obama's judicial picks.

And if you're not satisfied with a Constitution that (in the words of Justices O'Connor and Kennedy) merely treats "liberty" as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life," and if you're not even quite satisfied with a "living, breathing Constitution" — well then, by golly, you'll just love the rip-roarin', snot-snortin', tap-dancin' Constitution as imposed on us all by Pres. Obama's judicial picks. God save the United States from that "Honorable" Court.

Posted by Beldar at 01:46 PM in 2008 Election, Law (2008), Obama, Politics (2008) | Permalink


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(1) Antimedia made the following comment | Mar 8, 2008 8:01:05 PM | Permalink

Just what we need. Justice by judicial heart throb.

You know what's wrong with America? We've got too many people who have no concept of what tyranny is.

(2) Gregory Koster made the following comment | Mar 9, 2008 2:11:18 PM | Permalink

Dear Mr. Dyer: "Snot-sortin'"? Easy there. Still, you are right. Such an influx would be hideous. The more so in that the GOP will likely not have a majority in the Senate that could block the worst of the nominees. Also think Harry Reid, with a Senate majority of less than 60, would have no problem in attacking any atempted filibuster by ramming through the "constitutional/nuclear" option, i.e. the 'no-more-filbusters-vote-'em-up-or-down-on-a 51-vote-majority' option. John McCain would have another bitter lesson to learn. Half of his Gang of 14 would vanish, leaving him out in the cold while Reid chortles, "What're ya gonna do about it, sucker?"

Tangentially related: would removing the filibuster from the Senate be a move toward better government, or not? I can't decide. The costs of filibusters are dismaying, as Robert Caro's volume three of his Lyndon Johnson biography show. But they have brought benefits. Where does the scale pointer finally point to? your thoughts?

Sincerely yours,
Gregory Koster

(3) Beldar made the following comment | Mar 9, 2008 5:40:25 PM | Permalink

Mr. Koster, the Caro 3rd volume is indeed, as I've described it on my blog previously, the single best book on American politics I've ever read. It makes one cry, though, to realize how pathetic today's Senate is in comparison even to the Senate of LBJ's day, in which there were many (if tragically flawed, like Richard Russell or LBJ himself) legislative titans and statesmen.

I was hugely amused, but slightly disturbed, to read in today's generally unflattering NYT story that Obama waited to read "Master of the Senate" until after his own election to the Senate because he didn't want to be spotted reading it and to be therefore thought "presumptuous." Obama, magna cum laude from Harvard Law and president of its Law Review, is obviously a bright fellow. But sincere or genuine? Not so much.

The "constitutional option" (a/k/a "nuclear option") threatened by the GOP in 2005 was never intended to do away with filibusters altogether, and would only have applied to filibusters of judicial nominations. Doing away with filibusters would mean directly attacking 200+ years of Senate history and tradition. But that same 200+ year history did not include the filibustering of judicial nominees — that was a new phenomenon of the late 20th and early 21st Century only. The Constitution doesn't oblige the Senate to pass, or even bring to a vote, any regular legislation, resolutions, etc. But as consistently interpreted for that 200+ years, it clearly, albeit impliedly, obliges the Senate to furnish an up-or-down vote on judicial nominations, with respect to whom the Senate expressly owes the President its "advice and consent" (or refusal to consent).

I thought it was a good idea at the time. I still think it is. And I'm still of the old school who believes that qualified nominees ought not be rejected on overtly political grounds (e.g., had I been in the Senate, I'd have voted, like every Republican did then, to confirm Ginsburg notwithstanding the certainty that (as a former ACLU general counsel) she'd be a flaming liberal on the SCOTUS).

Obama, by contrast, used the Roberts nomination to signal that he views his "advice & consent" role as obliging him to oppose even superbly qualified candidates nominated by his political opponents -- a ruthless, unprincipled, and destructive rationale absolutely at odds with all of his campaign rhetoric about "uniting" and "working across the aisle." (He reaffirmed the position by voting against Alito too.)

I'm not in favor of doing away with the filibuster generally, nor of altering the current number of votes required for cloture, because I prefer that the Senate remain the constitutional saucer to cool the hot passionate legislative coffee of the House (and, sometimes, the president).

(4) Gregory Koster made the following comment | Mar 10, 2008 4:00:12 PM | Permalink

Dear Mr. Dyer: Thanks for your take. I'm with you that qualified nominees should get a vote. But the tide is running against us. I think this is because the courts are perceived as more "political" than they used to be. Certainly, Supreme Court Justices are timing their departures until they feel confident that their replacements will likely be satisfactory. This is why Brennan, Marshall, Blackmun, and now Stevens held on for so long. It isn't just the lefties who do this: see Rehnquist J. and His Judicial Antics. But it feeds the perception that the Court is just another political arena. I think this is bad for the country, but nothing will change until Congress steps in. All too often, Congress is happy to sit on the sidelines and let the Court get beat up. See: Roe v. Wade. In theory no one should care what Roe says. Just have Congress pass a statute embodying what Roe means. Okay, a hearty laugh is good for all of us: I know dam well that neither side could ever get such a law, let alone a constitutional amendment, passed. Such an effort would make the conflict in Iraq look like peanuts. So the struggle shifts to the courts. Results: every time a Supreme Court slot opens up Roe immediately sucks all the oxygen out of the political room. I am dam tired of this, but don't see a way out. So the Senate decides to use filibusters/threats of same, a political device, to counter the political tendencies of the nominees. It's a great show---if you don't have any other concerns, e.g. the sad state of 4th Amendment jurisprudence.

Sincerely yours,
Gregory Koster

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