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The Most (Un)Wanted Judges

A comprehensive rundown of the worst of the worst of Obama’s radical judicial nominees.

by
Hans A. von Spakovsky and Deborah OMalley

Bio

May 17, 2011 - 12:00 am

The FBI’s “Most Wanted Fugitives” list has been around since 1950. President Obama’s penchant for nominating political activists and radical academics to the federal judiciary has resulted in a new list: the “Most (Un)Wanted Judges.” This list is comprised of nominees who (with two exceptions) are now pending a vote in the Senate.

The federal judiciary is not the place for political agendas and academic fads. But the Left has used the federal courts for decades to advance their political goals at the expense of the Constitution and the rule of law. The worst of the worst judicial nominees would, if confirmed, set back our liberty, our economic freedom, and the hard work that constitutionalists have been doing to reestablish the limits on the power of government envisioned by the Framers.

Here is the who’s who of the worst:

Goodwin Liu: If you think the Ninth Circuit, the most liberal and out-of-control appeals court in the country, couldn’t get any worse, you haven’t met Goodwin Liu, associate dean of the University of California Berkeley School of Law.

For starters, Liu does not even meet the standard for federal judgeships outlined by the American Bar Association, which requires substantial courtroom and trial experience and at least 12 years practicing law. Liu has no experience as a trial lawyer. He hadn’t even been out of law school for 12 years when he was nominated.

In his writings, Liu has shown a disturbing judicial philosophy that fits neatly within the activist mold Obama wants nominees to fill. Liu “envisions the judiciary … as a culturally situated interpreter of social meaning.” Judges are not supposed to be interpreters of “social meaning” who base their decisions on the latest cultural meanderings of academia. They are supposed to be interpreters of the Constitution and the laws passed by Congress. But it is this kind of nebulous culturally situated interpretation that allows judges to ignore the plain and ordinary meaning of the law and to replace it with what they personally think is the “best” outcome based upon their own highly subjective, biased, and often radical interpretation of “social meaning.”

Just how would this interpretation of “social meaning” manifest itself? One way, according to Liu, would be a court-created constitutional right to welfare. Liu desires a “reinvigorated public dialogue” about “our commitments to mutual aid and distributive justice across a broad range of social goods.” He wants the courts to recognize “a fundamental right to education or housing or medical care … as an interpretation and consolidation of the values we have gradually internalized as a society.”

In another article, Liu stated that “negative rights against government oppression” and “positive rights to government assistance” have “equal constitutional status” because “both are essential to liberty.” This concept is foreign to our Constitution: our Framers recognized the danger of inviting the government to “assist” us with distributing social goods.

Liu’s opposition to the death penalty prompted 42 of California’s 58 county prosecutors to send a letter to the Senate protesting his nomination because “he would vote to reverse nearly every death sentence.” In fact, the prosecutors said that Liu’s “views on criminal law, capital punishment, and the role of the federal courts in second-guessing state decisions are fully aligned with the judges who have made the Ninth Circuit the extreme outlier that it presently is.”

Liu also believes that Americans have an obligation to make reparations for slavery and supports racial quotas to remedy “societal discrimination,” a position the Supreme Court has rejected.

Louis Butler: Louis “Loophole” Butler served four years on the Wisconsin state supreme court after the governor appointed him to fill a vacancy. But the voters of Wisconsin rejected him twice when he ran for that same court. Disregarding the unmistakable public disapproval of Butler, Obama selected him for a lifetime seat on a Wisconsin federal district court.

As a public defender, Butler earned the nickname of “Loophole Louis” because of his ability to get criminals off the hook. But the nickname — and the propensity that caused it — did not disappear when he became a judge. During his four years on the state supreme court, he earned a reputation for being soft on crime and constantly finding in favor of criminals. This may explain why he was the first sitting justice on that court in four decades to be denied election by the public when his appointment expired.

Butler’s judicial wrongdoings include a decision removing the state’s cap on non-economic damages in medical malpractice claims, an example of judicial imperialism overriding the decisions of the state legislature. Butler also pushed “collective liability” in lead-paint cases. This means that a paint company can be liable for damages in a lawsuit even if the company did not produce the paint in question. Somehow Butler thinks that all paint companies hold “collective liability” for the mistakes of any one company. Even the former dean of the University of Wisconsin School of Law called this collective guilt theory “radical.”

His opinions have also revealed a disturbing judicial philosophy. In one opinion, Butler claimed that courts can make use of new policy studies and social science publications to change public policy and thus change the law — which always strangely seems to coincide with judges making the law conform to their own particular beliefs.

Butler himself has not been shy about using this anti-democratic theory to change the law. Despite the fact that the Wisconsin Constitution explicitly states that the right to bear arms is for personal security and “any other lawful purpose,” Butler ruled that a Wisconsin statute banning concealed carry for any purpose, at any time, somehow does not violate this explicit constitutional right. In another case, Justice Butler was the deciding vote in a decision to ignore controlling precedent of the U.S. Supreme Court, resulting in “evidence essential to a murder trial being excluded from court.”

Edward Chen: Chen, a federal magistrate in San Francisco, was nominated to the northern district court of California. The Senate unfortunately confirmed him on May 10.

Sen. Jeff Sessions, (R-AL) has observed that many of Obama’s nominees have the “ACLU DNA” — close ties with the radical left-wing group that advocates liberal judicial activism. Chen is certainly no exception; he spent nearly two decades working as an ACLU staff attorney.

Chen embraces the Obama empathy standard, which even Justice Sonia Sotomayor ultimately repudiated in her confirmation hearing. Chen has stated: “Simply put, a judge’s life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers. Rather judges draw upon the breadth and depth of their own life experience. … Inevitably, one’s ethnic and racial background contributes to those life experiences.” Once again, Obama nominates a judge who thinks that his own personal, subjective experience should guide the direction of the law.

Chen has even more radical views when it comes to race and patriotism: Immigration laws are “institutionalized racism,” and English proficiency requirements are “language discrimination.” These statements are particularly worrisome given that the northern district court of California has the seventh-largest caseload of immigration prosecutions in the country. Chen also has “feelings of ambivalence and cynicism” when confronted with “appeals to patriotism,” such as “America the Beautiful,” because, he says, there is too much injustice and inequality in America.

Given Chen’s opinion that a judge’s “life experiences” should influence his judgment, it seems obvious that he will implement his radical views in his lifetime tenure as a federal judge. He’s the kind of socially liberal activist that should have been kept far from the bench. He will ignore the law and work to further his outlandish views of what he thinks America should be, not enforce the laws passed by what he surely views as a culturally immature and unenlightened legislative branch.

Susan Carney: Carney was nominated to the Second Circuit Court of Appeals by Obama despite receiving a mediocre rating from the ABA reviewing committee; a majority thought she was “qualified” but a minority said she was “not qualified.” Perhaps in part because she has no experience in a courtroom.

She was the director of a pro-abortion PAC for four years (Women Organizing Women), as well as the director of a gay marriage organization (Fine by Me). She financially supported numerous abortion organizations such as NARAL that oppose all parental notification laws and support federal funding of abortions, positions far outside the mainstream of Americans’ views.

Carney’s bias is such that she might have trouble meeting the standard that her own husband, liberal journalist Lincoln Caplan (a member of The New York Times’ editorial board), enunciated when he defended Democratic filibustering of judicial nominees as a way of “ensuring that no one will be given life tenure who is unworthy of judicial independence — who can’t be counted on to make impartial rulings.”

Of even greater concern are Carney’s ethical issues: While deputy general counsel at Yale, she was allegedly involved in a cover-up: court documents revealed that Carney hid information showing that the school had falsely confirmed to Dongguk University that one of its professors had received a doctorate from Yale. Federal judges need to be held to the highest ethical standards. No lawyer should be nominated that has engaged in this type of behavior before becoming a judge.

Bernice Donald: Donald, a district court judge in Tennessee, is nominated to the Sixth Circuit. She has made some worrisome, Chen-esque statements concerning how a judge’s experience should influence her decision-making. During an American Bar Foundation panel, she stated that, as an African American woman judge, she had a “vastly different” view than her white male colleagues as to which evidence supports summary judgment — as if one’s race somehow genetically defines one’s legal thinking. While judges try to be objective, she explained, they inevitably view things “through the lens of culture … and that may impact how … much weight [they] accord to different things.”

She has even advocated that courts consider a plaintiff’s cultural background in tort suits. Why? Because a plaintiff may be “more adversely affected by [an] error” depending on their cultural background and therefore “entitled to a larger award.” Not considering a plaintiff’s culture in tort cases, she asserts, denies “true justice” to large segments of society. In fact, she believes that courts hearing tort cases can be “on the front lines of public policy, cultural anthropology, and the law.” A novel concept of justice indeed, especially in a country with a Constitution that requires all citizens to be treated equally under the law, no matter what their race or “cultural” background.

Worse than these statements is her conduct on the bench. In a number of cases, she has stretched the limits of judicial power. In a gender-discrimination case, the Sixth Circuit overturned her decision for having “circular reasoning” and for ordering a professor to apologize to a female plaintiff who sued him for discrimination. The Sixth Circuit chastised Donald for exceeding her equitable power when she ordered the professor to apologize, citing to a Ninth Circuit case where the court said “[w]e are not commissioned to run around getting apologies.”

In another case, she took the bizarre — and blatantly unconstitutional — position that the racial makeup of faculty members at a school should match the racial makeup of the student body. Her argument was that school children are constitutionally entitled to “educational guidance which includes teachers of the student’s own race.” The Sixth Circuit rejected this argument, noting the obvious fact that it would amount to discriminatory hiring and firing of faculty. Donald, however, obviously believes that discriminatory employment practices like racial quotas are not just legal, but desirable.

Caitlin Halligan: A former solicitor general of New York and now the general counsel of the New York County District Attorney’s Office, Halligan has been nominated to the federal Court of Appeals for the D.C. Circuit. Halligan is a particularly bad choice for the D.C. Circuit, given that Court’s role in national security and Halligan’s disturbing positions on that issue. Halligan signed a report for a New York Bar committee concerning enemy combatants that argued that the law does not authorize indefinite detention of enemy combatants despite the absence of any case law, international law, or tradition supporting this view. The report also argued vigorously against military commissions, advocating the use of Article III civilian courts where enemy combatants would have the same constitutional protections as criminals, a position ultimately rejected even by the Obama administration — which has announced that it will try terrorist Khalid Sheikh Mohammed before a military commission.

The Supreme Court briefs Halligan filed as New York solicitor general reveal a disturbing judicial philosophy as well. In Roper v. Simmons, a case involving a brutal 17-year-old murderer, she asked the Court to strike down the death penalty for juveniles — an issue that should be left to the legislative process in the states. She also favored discriminatory college admissions policies in Grutter v. Bolinger and Gratz v. Bolinger. All of these examples reflect a judicial philosophy of putting the courts in charge of implementing her warped view of social progress rather than the people’s elected representatives.

Halligan opposed legislation passed to protect gun manufacturers from “public nuisance” lawsuits, a quack legal theory currently favored by the ambulance-chasing trial bar. She authored an opinion in which she favored a constitutional right to same-sex “marriage” and invoked a “living Constitution” theory. At her confirmation hearing, she suddenly displayed the equivalent of a deathbed conversion — she rejected the empathy standard and embraced originalism. The credibility of that conversion is open to serious doubt given her extensive, contrary record.

Michael Simon: Simon, nominated to a district court in Oregon, also carries the ACLU “DNA.” He is an active member of the ACLU and has provided the group with many hours of legal services pro bono.

Although he was evasive in his hearing, Simon has made statements suggesting a philosophy that does not bring him far afield from Liu and his other ACLU cohorts. Simon has claimed that “there is support for the conclusion that the Founders did not believe that their intensions and understanding should bind future generations.” For Simon, “that may be the only real ‘original intent’ of the Founders.” He believes that Christmas displays at courthouses and the teaching of intelligent design in public schools are unconstitutional.

Simon says that we should stop calling terrorism a “war” because that implies that using the military “is the best tool for this fight.” His views show that he still believes in the discredited idea that terrorism should be treated as a crime, a view that prevented effective counterterrorism strategy during the Clinton administration. His confirmation would endanger our national security, and it seems clear from his record that he supports the imposition of liberal policies through the judicial system.

Jack McConnell: Like Edward Chen, Jack McConnell was recently confirmed by the Senate. That’s also unfortunate. McConnell, who is now a district court judge in Rhode Island, is the judge that the tort lawyers who abuse our legal system dreamt of getting on the bench. Besides being one of the biggest donors to the Democratic Party (almost $700,000), the treasurer of the Rhode Island Democratic Party, and the ultimate plaintiffs’ lawyer, he worked as the director for Planned Parenthood of Rhode Island (without compensation). He is also the director of the George Wiley Center, which is named after one of the founders of ACORN.

McConnell, who received a mediocre rating from the ABA, has demonstrated his willingness to push extreme and untenable legal theories as a trial lawyer. He pressed a “public nuisance” theory in lead-paint litigation that was rejected by four state supreme courts. McConnell believed that a jury should find a defendant manufacturer guilty even if the company did not produce any of the lead paint used in the state, sharing the crazy views of ”Loophole” Louis that manufacturers should be liable for the errors of other companies. Sen. John Cornyn (R-Texas) accused him of misleading the Senate over his role in these lawsuits, including his use of documents that had been stolen from manufacturers.

All of these nominees share the same view of the courts as the president who nominated them — that the judicial branch is a super legislature that can veto whatever Congress does according to the social views and whims of federal judges. To them, the Constitution is not the set fixture in our democratic system that sets up the rule of law that has made us unique and exceptional in the history of civilized man.

President Obama’s nominees believe that once they are sitting in their lifetime-tenured positions on the federal bench, they can create, invent, originate, construct, and initiate whatever “laws” they believe are necessary to change America culturally, politically, and economically into the liberal utopia they believe it should be — even if the rest of us have to be dragged kicking and screaming into their ideal world. They represent a great danger to our liberty, our freedom, our way of life, and the rule of law.

Hans A. von Spakovsky is a Senior Legal Fellow, and Deborah O’Malley is a Visiting Research Associate, in the Center for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org).
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