Race Case & Obama

Today the U.S. Supreme Court considers a petition to review the Second Circuit’s decision earlier this year in Ricci v. DeStefano, in which New Haven, Conn. firefighters – one Hispanic and 17 whites – sued the city after the promotions they earned were denied under pressure from the city’s African-American leaders. The Second Circuit affirmed the denial. In addition to its legal importance, this case stands out because of its implications for both President-elect Obama and Sonia Sotomayor, one of his most likely Supreme Court picks. Don’t miss an excellent piece on the case by National Journal columnist and former New York Times Supreme Court reporter Stuart Taylor (link below).

First, some details about the case. The plaintiffs are typified by Frank Ricci, who spent hundreds of hours and more than $1000 studying for the promotion exam and got a high score. But he didn’t get a promotion. New Haven threw out the test results because too few black firefighters scored high enough to earn a promotion. Never mind that the exams were expertly designed to eliminate the possibility of racial bias

The politics motivating New Haven’s decision highlights the ugliness of the racial spoils system behind many of the nation’s affirmative action programs. Taylor explains the Chicago-like politics behind this case:

“Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a ‘political ramification’ if they certified the exam results. Kimber was a key vote-getter for [New Haven] Mayor DeStefano, who had made the minister chairman of New Haven's Board of Fire Commissioners despite his 1996 felony convictions.”

New Haven politics may soon impact national politics. Taylor explains:

“If the Court grants the petition, the now-obscure case will vault to the top of the nation's racial policy agenda, presenting a tough issue not only for the justices but also for President-elect Obama. He could come under great pressure to take a position for or against … what many voters – and, I would guess, five justices – would see as a raw racial quota.”

In his famous Philadelphia speech about race, Obama acknowledged the when "working and middle-class white Americans … hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time." We believe this resentment is at risk of accelerating now that Obama’s election to the nation’s highest office has undercut the “uneven playing field” rationale for racial preferences. Taylor is concerned that

“based on Obama's record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life.”

Taylor concludes that it “would be most interesting to find out” if Obama “appreciate[s] the simple injustice of the New Haven firefighter case.” We go one step further: the American people deserve to know where Obama stands on this case, regardless of whether the Supreme Court decides to hear it. After all, it is Obama’s judicial and political appointees who will determine whether injustices of the kind seen in New Haven continue and, most importantly for Obama, whether the resentment of white and Asian Americans builds in the four years before the next presidential election.

SONIA SOTOMAYOR

In one sense, Ricci v. DeStefano is a typical case of judicial activism in which a panel of three liberal judges decided the case based on ideology rather than law. But in this case, the Second Circuit panel included the notorious judicial activist Sonia Sotomayor, who is at or near the top of virtually every list of potential Obama Supreme Court nominees.

As Taylor explains, Sotomayor and her two colleagues knew their decision lay on shaky legal grounds:

“[They] affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both. … The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.”

By a narrow 7-6 vote, the full Second Circuit denied the firefighters’ request for a rehearing. In their denial, Sotomayor and several of her colleagues argued that New Haven’s decision was "facially race-neutral" because New Haven did not “confer any actual benefit on applicants on the basis of race.” As Taylor explains, the judges were making the laughable claim that the city’s action was non-discriminatory because “none of the low-scoring, ineligible African-American firefighters was promoted either.”

If Sotomayor is nominated to the Supreme Court, you can bet she’ll be asked about Ricci v. DeStefano, including her absurd definition of race-neutrality and her attempt to deny due process to the firefighters through a cursory order that is difficult to review.

Moderate Obama Judges; Lower Courts

A pair of articles on the front page of yesterday’s Washington Post reach the same conclusion about where judicial picks are having the greatest impact, with one article looking forward and the other backward:

“With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts – which dispense almost all federal justice – where Obama can assert his greatest influence. … ‘In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.’”(quoting U. of Pittsburgh law professor Arthur Hellman)

“Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly [in the D.C. Circuit] and in the nation's 12 other appellate courts.”

We think the lesson for GOP senators and conservative activists is that Supreme Court speculation should not be allowed to distract attention from limiting the damage done to the U.S. Courts of Appeal during the Obama presidency. President Obama may or may not have a chance to appoint one or more Supreme Court Justices in the next four years, but he will begin to push the circuit courts – where most law is made – in the direction of judicial activism within months of assuming office. The only question is how fast and how far.

The first Post article, by reporter Jerry Markon, goes on to ask whether Obama’s generally moderate Cabinet picks point towards moderation in his selection of judges. Probably not the article suggests:

“Although his Cabinet choices have won praise from Republicans as centrist, Obama's past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.”

In the same article, CFJ’s Curt Levey sums up the reasons for concern:

“Conservatives said they are hoping for moderate nominees but worry that ‘judges will be an issue where Obama throws a lot of crumbs to his political base,’ said Curt Levey … ‘People are worried. Obama has been unusually unabashed about believing in an activist role for judges.’”

The Obama quote used to illustrate his “generally liberal judicial philosophy [favoring] abortion rights” strikes us as ironic in that it could easily be read as a recipe for pro-life judges. Specifically, in a CNN interview this May, Obama said he wanted judges who sympathize with

“those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves.”

Sounds to us like a perfect description of unborn babies. We mention this to underscore the fact that constitutional law professor Barack Obama and the many other defenders of judicial activism have never been able to explain why their belief in a Constitution which evolves to protect the vulnerable leaves out not just unborn babies, but also crime victims, small farmers and home owners, victims of reverse discrimination by diversity-happy colleges and corporations, and most importantly, ordinary citizens who don’t want their votes to be overridden by judicial usurpation.

Could it be that the only real principle behind the Obama judicial “philosophy” is that judges should do whatever it takes to reach liberal outcomes?

President Bush's Judicial Legacy

As Brian Darling pointed out last week in Human Events, President George W. Bush has left an impressive mark on the federal judiciary. Darling writes:

“Bush’s appointments of Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito represent two major lasting victories for conservatives. Combined with Justices Antonin Scalia and Clarence Thomas, Bush’s appointments provide four reliably conservative votes on the nine-seat Supreme Court. He also appointed more than 300 conservative-leaning judges to federal district and circuit courts.”

The President's judicial legacy includes some 60 appellate court judges and more than 250 district court judges. Despite Democratic obstructionism in the Senate, President Bush stuck to his word and consistently nominated constitutionalist judicial nominees who were committed to the rule of law. As President Bush’s tenure as president comes to a close, it is important for conservatives to remember and be grateful for these accomplishments.

Obama’s Judges & the Bush Standard

Last Saturday, a Wall Street Journal editorial suggested that Barack Obama “renominate some of President Bush's highly qualified judicial picks who have been left to languish for years.” It would be a “good first gesture,” the Journal said, if Obama wants to “end[] the political war over judicial nominations” and “allay the concern that [he] lacks a constitutional standard for judicial selection.” As the editorial noted, “[t]here’s plenty of precedent.” In the first year of his Administration, George W. Bush successfully nominated two former Clinton nominees – Roger Gregory and Barrington Parker – to the appeals courts in an effort to set a bipartisan tone. During the Clinton Administration, Gregory was never confirmed, while Parker was confirmed to a lower court.

It remains to be seen whether President Obama will meet or exceed the Bush Standard by naming two or more of the current president’s judicial nominees to the appeals courts. But the Left apparently fears that he will. When it comes to judicial nominations, the surest way to know what the Left is worrying about is to look at what the Alliance for Justice (AFJ) and People for the American Way are railing against. Hence, eyebrows were raised earlier this week when AFJ responded to the Journal’s suggestion of reciprocation by denouncing it as a bizarre “fantasy.”

Why is AFJ concerned? Probably because reciprocation makes perfect sense for a President who promises to transcend partisanship and has nominated Bush’s Defense Secretary as his own. After two years of criticizing the current president for being too partisan, will Obama want to be seen as less bipartisan on judges than his predecessor?

AFJ chose to focus on the Journal’s mention of Steve Matthews and Bob Conrad as potential reciprocal nominees, presumably because the organization has already invested a lot in demonizing these two impressive Fourth Circuit nominees. But neither the Journal’s editors nor anyone else has suggested that Obama can meet the Bush Standard only by appointing Conrad and Matthews.

While the bad news is that Democrats raised the obstruction of judicial nominees to new levels during the last eight years, the good news is that the obstruction left Obama with many nominees to choose from should he decide to meet or exceed the Bush Standard. AFJ will not be able to demonize them all. In fact, some of them were selected by President Bush on the recommendation of Democratic senators.

Gay Marriage in California: It’s All Up to the Courts Now

An LA Times article addresses the numerous pressures and challenges confronting the California courts concerning Proposition 8. Maura Dolan reports that the Court is considerably torn. It knows that the political establishment – as well as a likely majority of the Justices – want Prop 8 struck down, but it lacks the legal precedent to overturn it and fears the possibility of a recall election. The Times explains the crux of the legal debate:

“The issue before the court is technical: whether Proposition 8 amounted to a sweeping revision of the state Constitution, which can be put on the ballot only by a two-thirds vote of the Legislature or a constitutional convention, or whether it was a more limited amendment, as its backers contended. Proposition 8 reached the ballot after a petition drive.”

However, if Proposition 8 is overturned by the Court, technical legal arguments will not quell the voices of the millions of Californians who will correctly regard the decision as a classic case of judicial activism. If Prop 8 is overturned and the voters are disenfranchised, it seems we can all set a date on our calendars for a recall election.

On a tangential note, libertarians would argue that if marriage were to be removed from state law and put in the private realm, this controversy would go away (see, e.g., Alan Dershowitz’s 2003 op-ed). Is the Prop 8 brouhaha the first step in convincing the public that marriage should be privatized?.

McConnell’s Warning re Obama Judges

At the just-concluded annual convention of the Federalist Society, GOP Senate Leader Mitch McConnell noted the potential threat to the rule of law posed by Barack Obama’s judicial nominations:

“America will soon have a new president, a president with some very unorthodox views about the nomination and confirmation of federal judges.”

Sen. McConnell pointed to Obama’s rhetoric and voting record:

“After noting that [now-Chief Justice] Roberts clearly had the intellect and qualifications to sit on the Supreme Court, he nevertheless opposed the confirmation because, as he said, he gave more weight to Judge Roberts’ ‘political philosophy.’ … [Obama] has explicitly stated on the campaign trail that the primary criteria he will use in choosing judicial nominees is their ability to empathize with certain groups.”

For those who believe in the rule of law – as opposed to judicial activism – there is “no more urgent moment” than now, McConnell concluded. Describing what we will call the McConnell Standard, the GOP Leader drew a line in the sand:

“If President Obama’s top criterion in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law. There is one side that judges should be on, and that’s the side of the law. This does not change in an Obama Administration.”

Sen. McConnell also hinted that potential Obama Supreme Court nominee Cass Sunstein of Harvard Law School is on the wrong side of the line. McConnell recalled “the infamous retreat Democrats held early in 2001 at which Professors [Larry] Tribe and [Cass] Sunstein suggested changing the ground rules on judicial confirmations” to include an ideological litmus test. As a result of Sunstein’s and Tribe’s advice,

“Democrats concluded … that [President Bush] should be entitled to little, if any, deference. … Instead of the traditional standards of legal ability, integrity, temperament, and, above all, fealty to the law, Democrats were now insisting on other considerations, like sympathy for certain groups. … [P]olitical ideology – that is, ‘whose side’ they thought a jurist was going to be on – was now the paramount criterion for confirmation.”

McConnell’s full remarks to the Federalist Society are available from CFJ upon request.

An Examination of the Election Results

As stated in an earlier post, the issue of judges did not play an important role in the election of 2008. The effectiveness of leaving judges out has been challenged by some, and exit polls taken on Election Day help to shed light on the issue.

The exit polls show that we are still a center right country, with 34% claiming to be conservative, 44% moderate, and only 22% liberal. When asked if future appointments to the Supreme Court were an important factor in deciding for whom to vote, 7% of respondents said it was the most important factor, and 47% stated that it was an important factor. Curiously, of the 7% of people who stated that the Supreme Court was the most important factor in their vote, 57% voted for Obama. These numbers demonstrate that conservatives could do a better job reminding people of the dangers of judicial activism.

With 63% of voters saying that the economy was their top issue, some might argue that it was a foregone conclusion that voters would overlook judges in this election. But with 78% of voters describing themselves as moderate or conservative, keeping activist judges at bay will remain an important and popular strategy for conservatives in the future.

GOP Senators on Obama’s Judges

The election is barely over and already GOP senators are discussing their strategy for handling Barack Obama’s judicial nominees. From yesterday’s Roll Call:

“[Republican Steering Committee Chairman Jim] DeMint, noting that Democrats successfully used the chamber to block several of President Bush’s nominees to circuit courts, warned that Obama and Senate Democrats will look to pack the lower courts with liberal judges. ... ‘They’re going to come back and try to fill those seats. ... If Republicans don’t make up their mind to stop this, we’re going to lose ground we can’t make up for generations. I think its going to be a key issue,’ DeMint said.”

We agree. Barack Obama has talked unabashedly about his activist judicial philosophy, specifically his belief that the rule of law must give way to “empathy” for the “poor, or African-American, or gay, or disabled.” If Obama plans to pack the federal courts with judges who don’t feel bound by the rule of law, GOP senators must unite in principled opposition, especially where the vacancy is the result of Democratic obstruction under President Bush. As DeMint suggests in the article, judges are one of the key issues on which the Senate’s GOP leadership must boldly step up to the plate.

And this from the Judiciary Committee’s ranking member, Arlen Specter:

“‘I wouldn’t want to anticipate any special difficulties in the future,’ Specter said, arguing that Republicans should allow the [judicial nomination] process to play itself out before the GOP decides to block a particular nominee. ‘Anybody who makes a decision up front to block them is being precipitous. I think we ought to give the new president a chance and see what he does,’ Specter said.”

Roll Call attempts to portray the difference in DeMint’s and Specter’s tone as “tension” within the Republican Conference. Granted, that makes for a more interesting story, but we agree with Sen. Specter as heartily as we do with Sen. DeMint. It would be unprincipled for Republicans to oppose the new President’s nominees up front.

Granted, Senate Democrats did just that in 2001, when the Democrat-controlled Judiciary Committee held hearings – entitled “Should Ideology Matter?” – that even the liberal Salon.com described as intended to “make sure that [the coming rough road for judicial nominees] was clear to the administration.” Nonetheless, Republicans should give Obama a chance to disprove their worst fears. As is true on many issues, we don’t yet know if Obama’s selection of judges will reflect his liberal heart or his non-partisan promises. Moreover, to select nominees for obstruction first and ask questions later would be to commit to the distortion of their records and the politics of personal destruction. Those tactics worked pretty well for Democrats these last eight years, but GOP opposition to nominees should be more principled.

Judges Issue Underused, Election Results Show

As we and many others have noted, the judges issue was one of the keys to GOP electoral success in the elections of 2000, 2002, and 2004. It "was one of Bush's best issues in the campaigns of 2000 and 2004" (Larry Sabato, University of Virginia), and on the Senate level, there’s “no doubt” the GOP “won races all throughout the country” using the issue (Karl Rove). In 2006 and 2008, the GOP shied away from the judges issue and suffered big losses. Undoubtedly, there are many reasons for those losses, but a careful look at yesterday’s election results and exit polls demonstrates that failure to emphasize the judges issue was an important contributing factor. Consider the following:

1) What are the first issues that come to Americans’ minds when the role of the courts is discussed? Abortion, gay marriage, and affirmative action are at the top of the list. This year, nine state ballot initiatives – in California, Colorado, Florida, Nebraska, South Dakota, Arizona and Arkansas – dealt with those issues. Each of the nine initiatives were motivated largely or wholly by court rulings that were perceived to be examples of liberal judicial activism, specifically U.S. Supreme Court rulings on abortion and affirmative action in college admissions, and the reality or possibility of state supreme court rulings on gay marriage. In six of the nine cases, the conservative position on the initiative – e.g., against gay marriage in California – ran ahead of John McCain. Even if McCain and his GOP colleagues were squeamish about tackling these controversial issues directly, they could have used the judges issue to tap into the conservative leanings of voters reflected in the initiative results.

2) A possible counterargument is that, while voters are concerned about these social issues, they just don’t care about the courts. Yesterday’s exit polls prove that argument wrong. Even without much attention given to the judges issue this fall, 75% of voters nationwide said that Supreme Court appointments were a factor in their vote for President, and 53% said it was an important factor. Those figures shouldn’t surprise anyone given that even the liberal ABA found that Americans, by an almost 2-to-1 margin, believe judicial activism “seems to have reached a crisis” (4 ABA Journal eReport 40, 9/30/05).

3) It’s also possible that GOP candidates avoided judges and social issues in the belief that this was a change election rather than a values election. If so, they were mistaken. While 34% of voters nationwide said that the ability to “bring change” was the candidate quality that mattered most in the presidential race, nearly as many – 30% – said sharing “my values” was most important. And that’s in a campaign in which values issues received little attention. Had Sen. McCain put greater focus on values issues – for example, by talking more about judicial activism – he would surely have benefited, since voters focused on values supported McCain over Obama by more than a 2-to-1 margin (66% to 31%).

People of California to the CA Supreme Court :

SLLLLAAAAP!

That's what you get for making up unenumerated "constitutional rights" out of thin air.

Bush’s Judicial Legacy

In this law.com article, Tony Mauro examines Bush’s impact on the Supreme Court. Mauro notes that even before his election in 2000, Bush had already given a lot of thought to the importance of good judicial nominees. However, Mauro adds, after eight years of Bush appointments the anti-activist transformation of the Court begun at Bush’s Crawford ranch may still be somewhat in its infancy. After all,

“in a conservative paradise, the Court would not have expanded habeas rights for Guantánamo detainees as it did in Boumediene v. Bush, nor would it have declared yet another category of defendants—child rapists whose victims survive—immune from the death penalty, as it did in Kennedy v. Louisiana. The Court pleased the business community by slashing the punitive damages stemming from the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, but … [e]mployment discrimination cases also went against employers, by and large”

Cornell Law School’s Michael Dorf observes that

“the mantra from liberals for the last four elections, at least, has been that the Supreme Court is ’one vote away’ from overturning cherished precedents like Roe v. Wade. Dorf notes that on issues such as race, abortion, and gay rights, “things have moved considerably. But we are still one vote away.’”

Mauro explains that the current center-right court can be attributed to a “dramatic chronology,” which includes the retirement of Justice Sandra Day O’Connor, the untimely death of Chief Justice William Rehnquist, and the unsuccessful nomination of Harriet Miers. It was “crucial to the almost accidental success of Bush’s Supreme Court nominations” that events unfolded the way that they did concerning the nominations of Alito and Roberts. But no matter the luck that led to its formation, the current court in its first term alone “brought enough conservative victories” to cement Bush’s legacy.

But how long might this legacy last? With Obama predicted to win the White House and a filibuster-proof Senate looming, what David Garrow of the University of Cambridge calls “‘the most successful legacy of Bush’s two terms” may be short lived.

The Appellate Courts and the Next President

Jonathan Adler has an interesting piece today in the National Review Online in which he analyzes the impact that the next president will have on federal appellate courts. He states that although President Bush and Republicans have had a great impact on the federal judiciary, with 56 out of the current 179 appellate court judges nominated by Mr. Bush or prior Republican presidents, “in just a single term, a President Obama could flip the federal judiciary, such that a clear majority of federal appellate judges would be Democratic nominees.”

Adler points to a recent analysis by Russell Wheeler, former deputy director of the Federal Judicial Center. The analysis reveals that many judges will be nominated by the next president through existing vacancies, judges opting for senior status, and through the creation of 14 new seats, which has been recommended by the U.S. Judicial Conference. Adler writes:

“If Wheeler’s estimates are correct, this would mean that a President Obama would have the opportunity to fill 61 appellate spots in his first four years. In other words, a President Obama could come close to matching President Bush’s influence on the U.S. Courts of Appeals in just his single term, as he would name almost one-third of the federal appellate judges on the bench. This would also increase the percentage of sitting federal appellate judges picked by Democratic presidents up to 58 percent.”

Adler raises a valid point: with a possibly Democratic Congress and White House, Democrats’ control of the judiciary would be inevitable. Even if it was not Halloween, this would still be a pretty scary thought.

75% Chance of Liberal Obama Court; It’s the Popular Vote, Stupid

We’ve been looking at some numbers and have reached a couple of interesting conclusions about the election:
1) If Barack Obama is elected president and serves eight years, there is a roughly 75% chance that he will be able to establish a solid liberal majority on the U.S. Supreme Court.
2) You can safely ignore all those state-by-state polls of the presidential race that you’re being bombarded with.

The Supreme Court is just one liberal justice away from having a 5-vote liberal majority. Given Barack Obama’s decidedly liberal judicial philosophy, there’s little doubt that if he is elected and gets to replace Justice Kennedy or one of the four conservative justices, the result will be a solid liberal majority of at least five votes. That prospect is enough to keep up one at night. And what better way to fight insomnia than to check the life expectancy tables to see how likely this unsettling scenario is.

The answer isn’t comforting. If Obama is elected and serves for eight years, there is about a 75% chance that he will replace Scalia or Kennedy and establish a solidly liberal Supreme Court. Consider the following:
1) Six Supreme Court Justices have retired during the last 20 years. The five who have died – Brennan, Marshall, White, Blackmun, and Rehnquist – left the Court an average of four years before their death.
2) Justices Kennedy and Scalia are both 72, and American men who have made it to that age have an average life expectancy of 84.

Combining those two facts, we can compute the likely age at which Scalia and Kennedy will leave the Court. Specifically, the expected value (i.e., mean of the probability distribution) for their retirement age is 80. In other words, there is about a 50% probability that each man will leave before reaching age 80 in 2016.

Do the math (50% x 50% = 25%) and you can see that there is only a 25% chance that both Kennedy and Scalia will serve beyond the 2016 election. Conversely, there is a 75% chance that if Obama serves through 2016, he will replace Kennedy or Scalia and establish a solidly liberal Court. Of course, there’s no guarantee that Justices Thomas, Alito, and Roberts will all be on the Court eight years from now, so the odds of a liberal majority are actually greater than 75%.

It’s the Popular Vote, Stupid

We realize that they make for great TV and full employment for pollsters, but the truth is that you can safely ignore all those state-by-state polls of the presidential race that you’ve been seeing. Sure, we know that there will be 51 separate elections for president next Tuesday, but history shows that it’s the nationwide popular vote that effectively determines the winner. We can pretty much guarantee you that, unless the popular vote is essentially tied – that is, less than a 1% difference between the top two vote-getters – the winner of the popular vote will be the next president. We know that not because we have a crystal ball, but because it’s never been otherwise.

When the popular vote is essentially tied, there’s obviously no telling which candidate will win the electoral vote and thus the presidency. Thus twice, a candidate who trailed by a fraction of a percentage point in the popular vote – George W. Bush in 2000 and Grover Cleveland in 1888 – won an Electoral College victory. And in 1876, Democrat Samuel Tilden beat Republican Rutherford B. Hayes by 3% in the popular vote and led by 19 electoral votes, with 20 in dispute. In the Compromise of 1877, Hayes was given the 20 electoral votes and the presidency in return for an end to Reconstruction. But these anomalies prove the rule: win the popular vote by a meaningful amount and you’re the next president.

Obama on Redistribution & Empathetic Judges

As Halloween approaches, there’s new reason to be scared of what Barack Obama has in mind for the federal courts. Earlier this week, a tape of Obama’s 2001 interview on a Chicago PBS station caught him wistfully noting that the Warren Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution” in order to bring about “redistribution of wealth.” The obvious question is whether Obama’s “living Constitution” approach to the law will mean an end to those essential constraints.

Yesterday, op-eds by Thomas Sowell, Steven Calabresi, and Robert Alt discussed this and related issues. Alt notes the connection between Obama’s redistributional ethic and his oft-cited call for judges who have “the heart, the empathy, to recognize what it's like to be a young teenage mom … what it's like to be poor, or African-American, or gay, or disabled, or old.”

“[Obama] has repeatedly said he wants judges who demonstrate empathy. … [I]n his floor statements explaining his votes against the confirmation of John Roberts as chief justice and Sam Alito as justice, he played on the class-warfare theme, criticizing each for too often siding with the rich and powerful against those he deems to be powerless. In making such assessments, Obama didn't offer even a hint of reflection on whether the law might have required the rulings he disliked, just a lamentation about the distribution of the outcomes.”

Calabresi wonders what news constitutional rights will flow from an Obama Court that shares his redistributional ethic:

“Is [Obama’s] provision of a ‘tax cut’ to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.”

We share Calabresi’s concern . In fact, when we published “Top Ten Things to Expect from an Obama Supreme Court” in July, number 4 was “new constitutional rights to massive government welfare and medical care programs.”

To be fair, Obama said in the 2001 interview that he was “not optimistic about bringing major redistributive change through the courts.” But as Alt points out, “his objection is simply that the courts aren't very good at carrying out long-term redistribution – not that major ‘sharing the wealth’ shouldn't come from other branches of government.”

Sowell succinctly sums up the problem with selecting judges who are inclined to rule for the party that is “poor, or African-American, or gay, or disabled, or old.”

“Do we really want judges who decide cases based on who you are, rather than on the facts and the law? … We are supposed to be a country with ‘the rule of law and not of men.’ … Obama is proposing the explicit repudiation of that ideal itself. That is certainly ‘change,’ but is it one that most Americans believe in?”

In fact, Calabresi notes, Obama’s approach to judging contradicts the oath that all federal judges take:

“Every new federal judge has been required by federal law to take an oath of office in which he swears that he will ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’ Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.”

Calabresi ends his op-ed with his own list of far-left rulings we may well see from an Obama Supreme Court:

“If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.”

Obama: Courts Should Redistribute Wealth

Whether it's Obama claiming that the Warren Court was much less “radical” than people have characterized it or bemoaning the Supreme Court’s “never [venturing] into the issues of redistribution of wealth,” this 2001 interview with the popular candidate should seal the case for his activist judicial philosophy. No matter how erudite and eloquent, Obama expresses some pretty radical views here.

Obama insinuates that the Constitution is out-of-touch, for it is only

“a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.”

Jeff Goldstein concisely summarizes the ramifications for an impending Obama presidency:

“‘In Obama’s America, we’ll finally be able to break free of the ‘constraints that were placed by the founding fathers in the Constitution’ — and in so doing, achieve ‘social justice’ through ‘redistributive change.’”

And Steve Schippert warns that

“the prospects of an Obama presidency and a large [D]emocrat majority that leans far left in both the House and the Senate will set the stage for "legislative" imposition of the transfer of wealth to those who he views have a civil right to that money.

That this is wholly counter to the Constitution is of no matter. Congress will pass 'transformational' tax and health care legislation, Obama will sign it into Law, and the only thing standing between it and us is the Supreme Court, which could strike down the laws as un-Constitutional. But what will that Supreme Court look like after one or two Obama appointments? Will it have the will to do so, or will enough justices 'interpret' ('invent' is a more appropriate term) the Constitution in the manner Obama does?”

Socialism here we come.

Was Heller an Activist Decision?

As Adam Liptak wrote in The New York Times a few days ago, the Supreme Court’s recent decision in District of Columbia v. Heller has come under attack from several prominent conservative legal scholars. It is easy to understand how opponents of judicial activism, many of whom are admirers of Justice Scalia (the author of the majority opinion in Heller), would be ambivalent over the decision. These people see the historical links as tenuous and find the Second Amendment’s prefatory clause (“A well regulated militia, being necessary to a free State,”), as relevant to the understanding of the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). It seems that most of the general public, though, sees the Second Amendment as granting an individual right to bear arms.

In his critique of the decision, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit stated that Heller “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” Judge Posner criticizes the originalism used by Justice Scalia, saying:

“Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.”

Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit compares Heller to Roe v. Wade in a forthcoming article in the Virginia Law Review, saying “the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.” This teaser of Judge Wilkinson’s forthcoming article is all we have at the moment, but his argument is provocative, to say the least.

Was Heller a form of judicial activism by Justice Scalia? Or did Justice Scalia use history to the best of his ability to understand the original intent of the framers when they wrote the Second Amendment? These are difficult questions to answer, and depending on which conservative one asks, apparently a variety of answers can be found.

McCain: Judges Nominated Would Not Agree With Me on “Every Single Issue”

Over the last several months, bloggers and pundits have brought up the issue of whether McCain’s promise to nominate non-activists to the federal courts conflicts with his support of campaign finance reforms, including McCain-Feingold. In the words of Volokh Cospiracy blogger Illya Somin, “a President McCain would face a difficult tradeoff between the goal of appointing conservative jurists and the goal of saving the McCain-Feingold law from invalidation by the Court."

In a recent interview with Human Events, the Senator responded to reporter John Gizzi’s question concerning this issue:

“Q: Now the four justices you cite as models for nomination -- Roberts, Alito, Clarence Thomas, and Antonin Scalia -- have all at different times voted to overturn parts of the McCain-Feingold campaign legislation you co-authored. Would you appoint justices who would do that?

A: Well, obviously, I wouldn’t impose any litmus tests. No justice that I would nominate would I expect to agree with me on every single issue. The majority of justices just made a ruling on detainees I didn’t agree with. That was very disturbing to me. And so, I can’t say I would agree with every decision. But if I can count on every justice that I name to share my view of the judiciary, then in the long run, things should come out OK.”

McCain gets it exactly right. In contrast to the outcome-oriented judicial philosophy of Barack Obama, McCain believes that the measure of a judge is not reaching the outcomes McCain desires but instead, using a constitutionalist approach to reach whatever outcome is dictated by the law.

Judges Issue in 3rd Debate

After getting short thrift in the first two presidential debates, the judges issue played a prominent role last night thanks to Bob Schieffer’s question about Roe v. Wade and Supreme Court appointments. Three themes stood out in that discussion:

1) Federalism vs. one size fits all

When asked about Roe v. Wade, John McCain said he favors a “federalist” approach to abortion. “I think that decisions should rest in the hands of the states,” he explained. Obama, on the other hand eschewed both a federalist and democratic approach, saying abortion rights shouldn’t be “subject to state referendum” or “subject to popular vote.” While that’s certainly true of First Amendment rights, as Obama noted, it begs the question of whether the Supreme Court should continue to give the judge-made right to abortion the constitutional status of rights explicitly given to us by the Founding Fathers.

What’s notable here is not that Obama supports Roe or that McCain thinks it was wrongly decided – we already knew that – but that McCain opposes a one-size-fits-all federal solution. Instead he wants the states to decide, which is exactly what would happen if Roe v. Wade were overturned. In contrast, a pro-life federal solution would presumably involve a federal statute or federal constitutional amendment prohibiting most abortions. It could also involve the pro-life equivalent of Roe v. Wade, that is, a Supreme Court ruling discovering a “right to life” in the Constitution. But that’s unlikely, as we’ve seen no indication that the conservative Justices share their liberal colleagues’ stomach for unbridled judicial activism.

2) Bipartisanship

Americans can only speculate about which of the two presidential candidates would be better able to reach across the aisle as President. But Sen. McCain reminded us that, when it comes to judges, he clearly has the more bipartisan track record:

“I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified … Senator Obama voted against Justice [Alito] and Justice Roberts on the grounds that they didn't meet his ideological standards.”

“There was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. We got together seven Republicans, seven Democrats [in the Gang of 14 agreement]. You [Obama] were offered a chance to join. You chose not to."

3) Outcome-oriented judging vs. rule of law

Sen. Obama once again made clear that he will appoint outcome-oriented judges rather than judges who go where the law leads them:

“I will look for those judges who … hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court [by strictly enforcing the statute of limitations] made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. … I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will.”

In contrast, McCain said he would appoint judges “who have a history of strict adherence to the Constitution and not legislating from the bench” and noted that waiving the statute of limitations would have been “a trial lawyer's dream.”

Sen. Obama deserves credit for being straight forward and consistent about his belief in outcome-oriented judging. For example, he previously promised to appoint judges who have “the heart, the empathy, to recognize what it's like to be a young teenage mom [and the] empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.” Many other liberals run away from such an outright endorsement of judicial activism by trying to redefine the term or otherwise muddy the distinction between liberal and conservative views of a judge’s proper role. But Obama embraces an activist judicial philosophy.

No one can deny the feel-good appeal of Obama’s descriptions of outcome-oriented judging. But let’s be honest about the dangers of his philosophy. Obama’s vision transforms judges into super-legislators who second guess the popularly elected legislatures that already weighed the costs, benefits, and fairness of various outcomes when crafting the law at issue – Title VII and its statute of limitations in the Ledbetter case. As CFJ Executive Director Curt Levey noted in his recent article about judicial activism:

“[S]uch progressive descriptions of good judging are little more than a license for unbridled judicial discretion. For example, does understanding what it's like to be African-Americans instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor white job applicant who lost a job to the affluent beneficiary of minority hiring preferences?”

Obama’s Donations in a Class of Their Own

Who donates to Obama? Apparently lawyers do – a lot. Law.com reports that “D.C.’s top law firms have given the Democratic presidential nominee more than triple the cash they’ve donated to Republican Sen. John McCain.” According to the article, four years ago those firms gave $936,000 to the Kerry-Edwards campaign, but that has been topped by the nearly $1.5 million the Obama campaign has received from Big Law in DC.

The article goes on to analyze the reasons behind the incredible support for Obama:

“Obama is likely benefiting from his own legal background: He’s a former president of the Harvard Law Review, Sidley Austin summer associate, and professor of constitutional law at the University of Chicago Law School. And it’s logical for lawyers to be drawn to the campaigns, since a number of issues appeal specifically to the legal-minded, says Kevin Wolf, a partner in Bryan Cave ’s D.C. office. For example, ’Who’s on the next Supreme Court? As a lawyer, I think that’s a very important topic,’ says Wolf, who, according to the Center for Responsive Politics, has bundled as much as $100,000 in contributions for the Obama campaign.”

The Obama advantage across the country is equally striking. While the category of lawyers/law firms holds top positions among in the benefactors of both campaigns, opensecrets.org reveals that $9.3 million has been given to McCain, compared to the $27.7 million which has landed in Obama’s coffers.

There’s little doubt that the makeup of the courts is a top election issue among lawyers. The more interesting question is what the large left-leaning lawyer support will mean for Barack Obama if he’s elected president.

Swing Voters and a President McCain

Many polls seem to favor Obama at this time, and the number of potential swing voters is uncertain. McCain must persuade swing voters in a manner quite severely underused thus far – through emphasizing the stakes that a potential 8-year Obama presidency will have on the federal courts.

Robert A. Levy, chairman of the Cato Institutute, quite aptly elucidates what is at stake in this election concerning judges. Among the items on the upcoming federal judicial docket are:

“privacy, wartime executive power, racial preferences, abortion, property rights, cloning, gay marriage, school choice, the death penalty, [and] gun control.”

But why should this issue matter so much to voters? Quoting Cato constitutional scholar Robert Pilon, Levy makes a critical point concerning the cavalier “living document” view on the Constitution: ‘"If powers can be expanded with impunity, so too can rights be contracted…In fact, a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain."’ Indeed, “when the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name.”

It is imperative that McCain highlight that this is an important historical moment for the courts. If McCain emphasizes the importance of a non-activist judiciary, perhaps he may sway enough people to take him over the top in this election. Ultimately, with one more debate left, he must hammer the virtues of a non-activist judiciary home to the voters – even if the question from the moderator never comes.