judicial activism

The Constitution in the Hands of Activist Judges

President Barack Obama has made his first nomination to the Supreme Court, Sonia Sotomayor.  She has a great American personal story, not quite as great as Clarence Thomas, but a great one nonetheless.  Here is what Barack Obama said about Clarence Thomas and Justice Scalia.

“I would not have nominated Clarence Thomas,” said the presumptive Democratic nominee. “I don’t think that he…” the crowd interrupted with applause. “I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation. Setting aside the fact that I profoundly disagree with his interpretations of a lot of the constitution. I would not have nominated Justice Scalia though I don’t think there is any doubt about his intellectual brilliance. Because he and I just disagree. — Barack Obama with Rick Warren

Much of the ballyhoo over Judge Sotomayor has been about her background.  No one, I repeat, no one has a more compelling story than Clarence Thomas, but when he was up for nomination, the ad hominem attacks were disgraceful.  Barack Obama doesn’t think Clarence Thomas is a strong enough jurist?  You may disagree with Clarence Thomas’ beliefs but remember the context of the question from Rick Warren.  Warren asked who on the Supreme Court Obama would not have nominated and out of the nine justices, he picked Thomas.  So Obama thinks Souter has a greater legal mind than Thomas? Or was Obama trying to score a twofer?  He can bash a conservative to score points on the left, while showing he is not a knee jerk Affirmative Action type by singling out the black guy, so he can score points with independents.  Let’s be clear, Obama rarely makes a public statement that is not calculated for effect.

President Obama is now trying to get his first nominee confirmed and to do so is pointing to the tradition that President’s should generally get who they want, unless there is a serious problem with the nominee.  However, while in the Senate, he had a different view as shown during the confirmation of Samual Alito.  Obama voted to filibuster that nomination.

“As we all know, there’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record.” — Barack Obama speech on why he was voting against Samual Alito.

With the nomination of John Roberts, Senator Obama clearly stakes out a position favoring judicial activism.  He said that in 95% of the cases following the Constitution is fine.  The other 5% of the time judges should feel free to re-write the constitution.

“The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”  — Barack Obama’s speech on why he was voting against John Roberts

Okay, so show me where Ruth Bader Ginsburg has voted with Antonin Scalia 95% of the time.  If you take what Obama says at face value, if they followed the Constitution 95% of the time, Ginsburg and Scalia would vote the same way.  Since Scalia plainly says his philosophy follows “original intent”, that is, adhering to the Constitution as written, Obama must be admitting that Ruth Bader Ginsburg is a judicial activist since she rarely agrees with Scalia.

“A lot has been made about the Supreme Court and my criteria,” Obama said in a 20-minute speech to 250 of the night’s biggest donors. “I want people who have a common touch, who have a sense of what it’s like to struggle.”

He praised Sotomayor because she knows that “every once in a while, people need a hand up.” — Barack Obama speaking on why Sonia Sotomayor should be nominated to the Supreme Court

In this statement about Sotomayor, he confirms what he really believes that personal prejudices, and by that I mean “pre-judging”, are an essential element for a judge.  He believes the Constitution plays a role, but where the outcome is not pleasant, by all means re-write the Constitution to give you the outcome you want.  But once again Obama flip-flops:

“There are, of course, some in Washington who are attempting to draw old battle lines and playing the usual political games, pulling a few comments out of context to paint a distorted picture of Judge Sotomayor’s record. But I am confident that these efforts will fail; because Judge Sotomayor’s seventeen-year record on the bench – hundreds of judicial decisions that every American can read for him or herself – speak far louder than any attack; her record makes clear that she is fair, unbiased, and dedicated to the rule of law.” — Barack Obama’s weekly radio address.

First, I want to point to the Obama straw man, “some in Washington,” without naming who those some are.  So, here he says she is “fair, unbiased, and dedicated to the rule of law.”  Well, which one is it?  Biased, to swing those 5% of the cases that need a better outcome, or dedicated to the rule of law.

Teaching Moment

Judge Sotomayor’s nomination will probably be confirmed.  What conservatives must do is refrain from the name calling, any ad hominem attacks, and focus on whether or not she is a judicial activist or not.  The questioning should be respectful but unwavering.  Most Americans are opposed to activist judges.  The American people should be clearly informed that Justice Sotomayor is just that.  But if the long knives come out to damage her, that message will be lost, as will a valuable issue to use in the next election.  When adhering to conservative principles 60% of the American people are with us.  When we put up wishy washy candidates to appeal to groups, the Democratic playbook, we get slaughtered every time.