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What Kind of Justice Would President Obama Mete Out?

Barack Obama may have been a professor of constitutional law, but some of his ideas about the role of the Supreme Court could be problematic. Which justices would he appoint if given the chance?

by
Jennifer Rubin

Bio

May 26, 2008 - 12:30 am

Barack Obama, the presumptive Democratic presidential nominee, never tires of telling his audiences that he was a constitutional law professor and, therefore, particularly qualified to address the sticky constitutional issues which the next president will face. Indeed, his early fame came, in large measure, from his status as the first African American editor of the Harvard Law Review.

Both because he offers his legal background as a qualification for the presidency and because the next president may have the opportunity to appoint five or more Supreme Court justices (plus as many as two hundred lower court judges), it is worthwhile to look at Obama’s views on the Constitution and his criteria for selecting judges.

Judges as social workers

Obama has described his views on the role of the courts and the proper criteria for picking judges. In a recent interview with Wolf Blitzer, Obama explained:

Now there’s going to be those 5 percent of cases or 1 percent of cases where the law isn’t clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings. And in those circumstances, what I do want is a judge who is sympathetic enough to those who are on the outside, 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 from being — from being dealt with sometimes unfairly. That the courts become a refuge for justice. That’s been its historic role. That was its role in Brown v. Board of Education.

Recently his spokesman stated, “Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”

Well what’s wrong with all that? Plenty, if you believe in the separation of powers and democracy, according to noted conservative legal scholars.

Steven Calabresi, professor of law at Northwestern University and co-founder of the Federalist Society (who also serves on John McCain’s legal advisory committee), says “I think it means he has completely the wrong idea of what a judge is supposed to do.” He notes that since the first Congress all judges have taken an oath to “do equal justice unto the rich and the poor,” but, by asking judges in essence to side with the less well off, Obama is “calling on judges to disregard this.”

Taken literally, Obama’s conceives the role of the courts as roving advocates of the poor and disadvantaged who will look, not to the text and meaning of the Constitution, but to their own ethics and values — presumably very left-leaning ones — to override statutes, executive branch actions, and the American people themselves.

Given that, one wonders if confirmation hearings for Obama judicial appointees should skip over questions of the law and focus on the appointees’ religious and ethical views, their childhood experiences, and even their record of charitable giving. How else will we know whether they are “sympathetic enough”?

Aside from his judicial philosophy, Obama’s views on specific matters of constitutional law are no secret — and bear little resemblance to the body of case law which has built up over the last thirty years.

Abortion extremism

On abortion, Obama is an absolutist. Last April, he took strong exception to the Supreme Court’s ruling upholding the federal Partial Birth Abortion Ban Act (which had passed the House 281-142 and the Senate 64 [including 16 Democrats] to 33).

This is not simply then someone who believes women should have the last say in deciding whether to have an abortion, but one who believes that the courts should entirely displace the view of huge congressional majorities and public opinion to discern, as Calabresi bluntly puts it, “a constitutional right to dismember babies in a painful and somewhat violent way.” There is virtually no regulation or limit on abortion which Obama would likely find acceptable.

Here we see the fallacy of Obama’s notion that, in the absence of clear constitutional language, judges should resort to their own ethical precepts to decide cases. Obama’s own expressed views of judicial interpretation might lead many judges to a result utterly at odds with the one he has in mind. Robert P. George, Princeton professor of law (also on McCain’s legal advisory team) observes, “His definition of the ‘vulnerable’ and the ‘powerless’ fits the unborn to a ‘t’.”

George explains that we have disputes in our country both about who “counts” as powerless and how we should treat them, but that these issues must be resolved within our “constitutional system.” He says, “For courts to interfere with no constitutional warrant and displace the people is a sin against democracy.”

Colorblind racism

On matters of race Obama is no more moderate. Last year the Supreme Court decided cases from the Seattle and Louisville school systems which concerned whether, in the absence of any history of discrimination or after expiration of any court order to remedy past discrimination, children could be assigned to schools by race. A majority of the court held they could not under the Equal Protection Clause of the Fourteenth Amendment.

Obama railed at the decisions, declaring they reflected “a disturbing view of the Constitution that equates voluntary integration with Jim Crow segregation — a view that is both legally and morally wrong” and would usher in an end to Brown v. Board of Education, which banned segregation in schools.

In his view, a bar on using race to assign children to school spells the return to “separate but equal.” Moreover, to reach that result (and agree with the dissenters in the cases) Obama would have demanded that the Court repeal more than twenty years of established case law which held that affirmative action measures must pass a “strict scrutiny” standard (requiring a compelling interest by the state and means narrowly tailored to reach that end).

But Obama’s view of these cases should come as no surprise. He has consistently opposed a colorblind view of civil rights. In 2006 the Michigan Civil Right Initiative appeared on the ballot and passed overwhelmingly, 58-42%. It stated, “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Obama did not merely oppose this measure; he cut a radio ad declaring: “If the initiative becomes law it would wipe out programs that help women and minorities get a good education and jobs. It would hurt initiatives that help women and minorities build their own businesses. And it would eliminate efforts to help our children enter fields such as science, engineering, and mathematics. Proposal 2 closes these doors to many in Michigan and it moves us further away from a country of full opportunity.”

But of course the measure did no such thing. It in no way affected efforts to “help children” or other programs so long as they did not use race or other protected categories to classify people. How would women and minorities have been hurt in building their own businesses by a measure that says all citizens should be treated without regard to gender and race? It is a mystery.

But what Obama opposes is crystal clear. Both as a matter of policy and Supreme Court doctrine, he objects to the concept that the government should not classify its citizens by race except in compelling circumstances (such as the need to remedy past discrimination).

Gun ban: Tipping his hand

When it suits him, Obama declares that it is not appropriate for him to comment on constitutional case law. With regard to the most significant Second Amendment case in 40 years, District of Columbia v. Heller, Obama has claimed it improper (for unknown reasons) for him to opine on a pending case. In this case the D.C. Circuit Court struck down what is essentially a total ban on handgun ownership, finding that the Second Amendment should be interpreted as securing an individual right to bear arms.

In deflecting questions on this case Obama has alternately claimed that he does not comment on pending legal matters (Except on race or abortion cases? Or only if they don’t impact swing state voters?), or that he is unfamiliar with the case, an odd remark from a constitutional scholar on a case that has been the subject of dozens of detailed press accounts over the last year. But he did provide one hint: he declined to join with 55 of his Senate and 250 of his House colleagues in an amicus brief urging that the Court strike down the handgun ban.

And here again we see at work the worst of his results-oriented legal reasoning. Obama at times has suggested that an individual right to own a handgun might exist but that the “common sense” regulation by the District of Colombia might be upheld.

But this is simply incorrect as a matter of basic constitutional principles. It is casebook law that a constitutional right once determined can only be abrogated (as it was, the circuit court decided, by an outright ban in the D.C. gun case) when the law at issue passes muster under the strict scrutiny standard, not merely by a finding that the law is a “common sense” or, in legal parlance, “reasonable” one.

Indeed, if his theory of constitutional law were applied in the abortion arena, not only would partial birth abortion bans be upheld but so would many other types of “common sense” regulations such as waiting time periods. As Calabresi points out, Obama’s view seems to be that “it’s just fine with guns but not if you’re a teenage girl wanting an abortion.” Calabresi concludes that these are simply Obama’s personal policy views which have “nothing to do with the Constitution.”

Shaping the courts for generations

These issues and many others are not mere academic exercises. Under the next president, nearly 200 lower courts, which are in essence the “minor leagues” for future Supreme Court appointments, will be filled. And of course the entire Supreme Court could be refashioned.

We know from Obama’s vote (one of only 22) opposing the confirmation of now-Chief Justice Roberts that Obama will not be content to appoint a highly regarded Supreme Court advocate and judge. He apparently wants no part of a judge whose judicial philosophy can be summed up as: “Judges are like umpires. Umpires don’t make the rules, they apply them.” We’ve seen repeatedly that Obama wants, not a referee, but a tenth man on the field — or rather one who always joins the team currently behind on the scoreboard.

Would Obama appoint his noted legal advisor and University of Chicago Law School professor Cass Sunstein? Ivy league law schools are now filled with scholars like Sunstein who argue that the Constitution secures rights such as the right to welfare or who contend that not only is abortion a constitutional right, but so is the right to government funding of those abortions.

Certainly, Obama will find no shortage of liberal law professors who do not take the words of the First Amendment literally and would uphold not just restrictions on free speech in campaign finance reform, but the return of the so-called “fairness doctrine” which would enact equal time mandates, essentially driving talk radio out of business.

Too far-fetched you say? Not at all. When a president and his appointees depart from the notion that the proper role of judges is (as best as they are able) to interpret and apply the language and meaning of statutes and the Constitution, we head into a brave new era of rule by judges who are very likely to share the ultra-left-leaning views of the president who appoints them.

And if Americans have come to believe the rhetoric of Democrats from numerous confirmation hearings that there are few values dearer than stare decisis (the respect accorded precedent in judicial interpretation), they might be sorely disappointed in an Obama judiciary. For to achieve the ends he seeks, we will need to travel back in time to the era of the (Earl) Warren Court — ripping up case after case as we go to arrive back in a time when the issue was not what does the law say but, in the frequent refrain of Chief Justice Warren, “Is it fair?”

We know for sure is that this is precisely what Obama wants and very likely what he will get if elected.

PJM’s special DC correspondent Jennifer Rubin is a writer living in Virginia. She is a regular contributor to Human Events, American Spectator and the New York Observer and blogs at Commentary’s Contentions.

Jennifer Rubin blogs at the Washington Post.
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