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Wednesday, November 05, 2008

Obama is at least badly misleading in minimizing the number of SCOTUS "hard cases" in which judicial philosophy is determinative

Obviously, the reason McCain-Palin lost was because I didn't blog on October 30th. I returned to duty on Halloween with a guest-post at HughHewitt.com about judges.

The election is over. This is still, however, problematic.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

Over at NRO's The Corner, Ed Whelan argues that in a televised interview yesterday with NBC News' Brian Williams, Sen. Barack Obama was "lying" when he claimed that differing judicial philosophies would only matter "less than one percent of real hard cases."

I've listened very carefully to the video clip — preparing my own transcription from it, which I reproduce just below, but you can also compare the Chicago Tribune's version if you'd like — and I can anticipate how the Obama campaign would respond to Ed's charge. I'm less certain than Ed that Obama was deliberately lying, but I'm certainly convinced that what Obama said was badly misleading.

(NB: I'm not 100% sure that the liniked video clip wasn't actually recorded substantially earlier in the campaign — although clearly (from the NBC News captions and text crawls) it was at least re-broadcast yesterday — because I can't find any reference to this interview on the MSNBC website, nor elsewhere besides the Tribune transcript I've linked. For what it's worth, the Tribune also reports the interview as having taken place yesterday. But if so, I don't have any good explanation — other than an odd and gross misspeaking — for Obama's closing words about Sen. McCain having the same sorts of conversations with potential Supreme Court Justices "if [McCain] ends up being the nominee.")

Here's my transcript:

WILLIAMS: Senator, a question about the Supreme Court. Everyone running for President always says, especially on the narrow issue of abortion rights, "No litmus test."

OBAMA: Right.


WILLIAMS: It's said on both sides of the issue. And if that's true, if you're not going to call a future Justice into the Oval Office, if you're successful in this endeavor, and bring up the subject, how then do you also avoid surprises? I don't think George H. W. Bush-41 ever dreamed that in Justice Souter, he was appointing a dependable liberal vote.

OBAMA: Right.

WILLIAMS: And Eisenhower for years called Justice Brennan his biggest mistake in office. Two surprises that just come to mind.

OBAMA: Right. Well, look, I think that what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, and who actually knows a lot of potential candidates for the Supreme Court on the right as well as on the left — because I've taught with them or interacted with them in some way — I can tell you that how a Justice approaches their job, how they describe the task of interpreting the Constitution, I think can tell you a lot.

And so my criteria, for example, would be, that if a Justice tells me that they only believe in the strict letter of the Constitution, that means that they probably don't believe in a right to privacy that may not be perfectly enumerated in the Constitution, but that, you know, I think is there. I mean, the right to marry who you please isn't in the Constitution. But I think that all of us assume that if a state decided to pass a law saying, "Brian, you can't marry the woman you love," that you'd think that was unconstitutional.

Well, where does that come from? I think that it comes from a right to privacy that may not be listed in the Constitution, but is implied by the structure of the Constitution.

So I can have that conversation with a judge. Now, a conservative who is listening to me right then says, "See, he wants to allow the court to legislate!" No, ninety-nine percent of cases, the Constitution is actually gonna be clear. Ninety-nine percent of cases, a statute or a Congressional intent is going to be clear. But there are going to be 1 percent, less than 1 percent, of real hard cases —

WILLIAMS: Second Amendment, last term —

OBAMA: Second Amendment, last term, is a great example, where the language of the Second Amendment is not perfectly clear. I believe that the Second Amendment is actually an individual right. I think that's the better argument.

And so, I can have those kinds of discussions with a Justice without getting to the particulars of, "Is Roe versus Wade, as currently outlined, exactly what you believe?" Or "Do you agree that the D.C. gun law should have been overturned?"

And I think Senator McCain, if he ends up being the nominee, could have those same conversations as well.

Of this, Ed writes (links in original):

As I explained months ago (when Obama used a figure of 95% for the same general proposition):

As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes — Breyer, Ginsburg, and Souter — agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.

Obama, far from being an idiot, is very intelligent. And, “as somebody who taught constitutional law for ten years” (as he tells us in the interview), he surely knows that what he is saying is false. In other words, the only plausible conclusion is that he’s lying — and he’s doing so in order to distract attention from the terrible impact that his appointment of hard-left judicial activists would have.

I can think of two ways that the Obama campaign might seek to rebut Ed's charge.

First, they might point to the vast number of decisions by the Supreme Court in which, in fact, there is no indication of disagreement among the nine Justices: the denial of petitions for writs of certiorari. That's the procedural mechanism by which the SCOTUS may mostly choose its own docket using its discretion pretty much however it sees fit. (There are only a very few types of cases in which the SCOTUS simply must hear cases on their merits, either because it has "original jurisdiction," as in lawsuits between States, or because Congress has granted litigants a nondiscretionary "appeal as of right," as in certain rulings from three-judge panels in Voting Rights Act cases.)

But if Obama intended to include all of those "cert petitions" into the mix for purposes of his 1% estimate, that's still extremely misleading: When each Justice votes to grant or deny each cert petition, he's not expressing an actual opinion on the merits of whether the lower court (typically either a state supreme court or one of the federal courts of appeals) was correct. Rather, the Justice is deciding whether that particular case is "cert-worthy" — worth taking up because, for example, there has been a split among the federal courts of appeals or an especially important issue is involved. There are hundreds and hundreds of cert petitions each year in which, for example, Justice Scalia may think that the lower court was right and Justice Stevens thinks that the lower court was wrong on the merits — but they both agree that the case isn't "cert-worthy," and so the losing side's petition asking the SCOTUS to grant a writ of certiorari (and thereby agree to hear the case) is denied.

Second and, I think more likely, the Obama campaign might argue that even though Brian Williams began the discussion by asking specifically about Supreme Court nominees, Obama was responding by describing all federal judicial appointments — intending to describe in his answer not just Supreme Court Justices, but federal district court and court of appeals judges as well. If one includes all of their cases, then there certainly are fewer "hard" cases in which judicial philosophy is likely to be critical. And that's evidenced by the relative infrequency of dissents among the three members of the appellate panels in which the federal courts of appeals typically hear cases. So if Obama had mentally shifted gears — if he'd switched, without indication, to discussion all of the federal judicial appointments a president gets to make, and not just SCOTUS appointments — then he may have been unclear and misleading, without necessarily telling a deliberate lie.

Whether Obama was knowingly lying or simply being obtuse, however, there's no real doubt that Ed's fundamental point is correct: At the Supreme Court level (and that's what Brian Williams was asking about), philosophical differences among potential appointees are going to be crucial in most cases — simply because by definition, the Supreme Court is the final forum in which the Constitution and laws of the United States are interpreted and applied, and because its docket consists almost entirely of the very hardest and most important cases from across the country. At a minimum, Obama is guilty of trying to underplay the importance of him making these picks as compared to John McCain. And thus, I agree that Obama was being very misleading in this interview.

(Jonathan Adler also has a very good article on NRO today about the potential importance of the next president's nominations for those lower courts, with which I agree entirely; I commend it to you wholeheartedly. What kind of judges the new president appoints to those courts arguably has a greater impact on folks' day-to-day lives than the SCOTUS appointees, and it certainly has a greater impact on federal court litigants. Prof. Adler argues, and I agree, that given the current membership on the SCOTUS and the current and likely vacancies in the lower courts, Obama, if elected, would probably have more influence on the lower courts than on the SCOTUS in his first term. In any event, those appointments are hugely important, even though the appointments themselves and the confirmation process for them often largely escapes public notice.)

A final point that disturbs me about this interview:

Sen. Obama is correct that by virtue of having attended Harvard Law School and been president of its law review, and then having been a part-time lecturer at another very good law school (the University of Chicago) for several years, he's rubbed elbows with a great many law professors with reputations vast and stellar. But with due respect to them, and to my host here (for Hugh Hewitt also teaches constitutional law), the very last thing that the United States Supreme Court needs is more law professors. And yet, as Sen. Obama's remark here confirms, law professors are almost certainly going to be the kind of SCOTUS Justices whom he would appoint.

Justice Alito, at least, had some experience as a trial court practitioner as an assistant U.S. Attorney early in his career. But other than him, there's no member of the Supreme Court with broad or deep experience in actually preparing and trying either civil or criminal cases. And while law professors-turned-SCOTUS-Justices may have gained some seasoning and real-world experience as judges on either the trial court bench or, more frequently, at the federal court of appeals level, that still leaves them many levels removed from the nitty-gritty day-to-day experience of the actual practicing lawyer.

Again and again, I read SCOTUS opinions written by brilliant just-graduated law clerks for smart Justices, in which it's painfully obvious that none of them have the slightest clue about, nor much interest in, what's happening in the real world. They create elaborate multi-part balancing tests and procedural gavottes with shifting burdens and subtle formulations — stuff that is worse than useless in the real world because it's not only impossible to implement, it's impossible to use as a basis for predicting how the SCOTUS will rule the next time an issue comes up. It's not too much to ask that at least one member of the U.S. Supreme Court actually have been a practicing lawyer representing private clients in real lawsuits that have actually gone through to verdict. But there's little doubt that in the Age of Obama, law professors would become the most elite of the new elites. And that should frighten anyone who has either common sense or a wallet.


UPDATE (Fri Oct 31 @ 2:40 p.m. CST): Ed has posted a pair of updates (here and here) to his original post in which he elaborates and also responds to a post from Matthew Yglesias. Yglesias doesn't mention the word "certiorari" or directly reference "cert petitions," both of which are admittedly inside-baseball terms through which SCOTUS-watchers and legal pundits communicate, but he does argue that "the Supreme Court has absolute discretion over which cases to hear" (which is nearly, but not quite, correct), so it's clear that Yglesias is advancing the first defense I posited above. It's a weak defense for the reason I mentioned above: cert decisions are emphatically not decisions on the merits, they're screening decisions, and it's inapt for either Obama or Yglesias to suggest that they say much of anything about the importance of judicial philosophy or who's making judicial appointments. Treating Obama's percentage terms as being based on cert petitions, to state it another way, is to impute to Obama a very poor understanding of what the SCOTUS actually does, and I think the odds of Yglesias being right in that imputation are extremely remote.

Yglesias goes on to say:

Meanwhile, in his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.

This is Yglesias making the second defense I suggested above, and I disagree with that one, too. Any reasonable member of the public watching the Brian Williams clip would conclude that Obama was indeed minimizing the importance of judicial philosophy, and specifically at the Supreme Court level.

As Ed and I both pointed out, Brian Williams was explicitly asking about appointment of SCOTUS Justices. I will admit that it's theoretically possible that Obama — mid-answer, and despite the clear question — spaced out and suddenly shifted from talking just about "hard cases" on the Supreme Court to talking about the entire federal judiciary's caseload. If so, however, Obama ought to have corrected himself by now in public, because he left his listeners believing that he was still answering Williams' question about the SCOTUS.

Moreoever, as Ed points out, the 99% figure is pretty close to the 95% figure he'd used in a previous interview with Wolf Blitzer on CNN and in a speech to the Planned Parenthood Action Fund when he was unquestionably talking only about the SCOTUS and its docket.

No, in my mind, there's no doubt that Obama was being misleading. The only question is whether — as Ed thinks — Obama knew exactly what he was doing and was conscious that what he was saying was false (Ed correctly chides me by email for calling this a "deliberate lie" in the opening paragraph of my original post, which was indeed both a redundancy and a misquote), or whether instead Obama was being unintentionally (but negligently) misleading because he was spacing out. If he was spacing out, it certainly was on a topic for which there's no very good excuse for him to have done that. And it certainly had the effect — which Ed believes to have been a deliberate purpose to begin with, consistent with his other speeches on the topic — of minimizing the difference between the voters' choice of Obama or McCain.

I can't entirely rule out the "spacing out" hypothesis, but it seems unlikely to me. I think it's more likely that Ed's probably right that Obama was just deliberately lying. In any event, however, on matters like this one, given that we're talking about a Harvard-trained lawyer and self-styled "law professor," his misleading of the public — whether deliberate or merely grossly negligent — is just about as culpable either way.

On almost all of the cases the SCOTUS chooses to hear, the difference in judicial philosophy between the kind of future Justices a President Obama is likely to pick and the kind a President McCain is likely to pick will be huge, and increasingly outcome determinative. Some of us are extremely distressed about having to rely on the none-too-reliable Mr. Justice Anthony "Sweet Mysteries of Life" Kennedy as the last semblance of a bulwark against unchecked judicial activism; we're none too thrilled about the idea of a President Obama replacing either Justices Stevens, Ginsburg, or Souter with younger clones likely to be on the bench for another two-to-three decades; and we're absolutely terrified at the thought that Obama might have a chance to replace Justice Scalia. We also know beyond any doubt that even though Obama may have met and worked with some conservative law professors, that ain't gonna be who he picks. He's likely to pick a Cass Sunstein — relying on GOP senators like John McCain to confirm based on objective credentials just like they did Ginsburg — but who's going to be as ideologically driven with a hard-leftist "positive rights"/activist agenda as Brennan and Marshall combined.

— Beldar

Posted by Beldar at 04:30 AM in 2008 Election, Obama, Politics (2008), SCOTUS & federal courts | Permalink


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