Obama and the Supreme Court

The matter of nominees to the Supreme Court of the United States was not a major issue during the presidential election.

I think it should have been. It's one of the things about Barack Obama becoming the next president that really concerns me.

It's not as if we don't have a clue about the sort of nominees Obama would name.

During the campaign, Obama said that he would select justices like Ruth Bader Ginsburg and David Souter.

In Obama's brief time in the U.S. Senate, he voted against both Chief Justice John Roberts and Justice Samuel Alito.

Obama said in opposing Roberts, “far more often used his formidable skills on behalf of the strong in opposition to the weak.”

Later, Obama criticized Roberts claim that he acted as an "umpire."

"But the issues that come before the court are not sports; they’re life and death," Obama argued. "We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom."

...“[Obama] not only voted against Alito, but for a filibuster,” said Nan Aron, of the Alliance for Justice, an advocacy group that led the effort to defeat several Bush judicial nominees.

When it comes to Supreme Court nominees, there's no question that Obama will be looking for very liberal individuals to fill vacancies.

The Los Angeles Times asks, "Who would Obama pick for the Supreme Court?"

Barack Obama's election probably does not herald a new liberal era at the Supreme Court, since none of the conservative justices -- who are in the majority -- is expected to retire in the next four years.

But if liberals cannot take control, Obama's win has them pushing for a strong voice for social justice on the high court.

"I think Obama would want to make a statement with his Supreme Court justices. We hope for a justice who can replace the lost voice of an Earl Warren or Thurgood Marshall or William Brennan," said Nan Aron, president of the Alliance for Justice, a coalition of public interest and civil rights groups. "It's critically important to have an Obama justice who can be a counterpoint to [Chief Justice John G.] Roberts and [Justice Samuel A.] Alito."

And many expect the voice to be that of a woman.

"I think it's a virtual certainty Obama would appoint a woman. It's absurd that the Supreme Court has only one woman, and everyone recognizes it," said Thomas Goldstein, a Washington lawyer who practices before the high court.

Three frequently mentioned candidates are Judges Diane Wood, 58, of the U.S. appeals court in Chicago; Sonia Sotomayor, 54, of the U.S. appeals court in New York; and Elena Kagan, 48, dean of Harvard Law School.

Wood knows Obama from her time teaching at the University of Chicago. Sotomayor could be the first Latino named to the high court. Kagan, who served as a domestic policy advisor to President Clinton, has won high marks from conservatives for bringing intellectual diversity to the liberal-dominated law faculty at Harvard.

Among Democrats, Govs. Janet Napolitano, 50, of Arizona and Jennifer M. Granholm, 49, of Michigan also are being talked about for top legal jobs in an Obama administration, either as U.S. attorney general or as future Supreme Court nominee. Both were federal prosecutors and attorneys general for their states before being elected governor.

It is not clear that Obama hopes to put the kind of person on the court that Aron and other liberals are dreaming about.

In an interview with the Detroit Free Press editorial board in October, he described Warren, Brennan and Marshall as "heroes of mine. . . . But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today."

He credited the Warren court with ending segregation and opening doors for African Americans. "The court had to step in and break that logjam. I'm not sure you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today," he said.

Since Richard Nixon's election in 1968, Republican presidents have named 12 of 14 justices to the high court.

...President Clinton named the only two Democrats to the court since the 1960s, and he steered away from strong liberals, instead choosing veteran appeals court judges with moderate to liberal records. Ginsburg, soft-spoken and measured, is a champion of women's rights. Stephen G. Breyer is a pragmatic problem-solver. Neither has been in a position to shape the court's work.

I find it stunning that anyone would peg Ginsburg as anything other than extremely liberal. There's nothing remotely moderate about her.

Edward Whelan writes:

[Eighteen] years before President Clinton nominated her to the Supreme Court, Ruth Bader Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. She proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day. She criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles. And (my favorite) she urged that prisons be co-ed rather than single sex.... As a justice, she has been eager to supplant the democratic processes and to dictate for all Americans which interests are part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Ginsburg's record isn't moderate to liberal. She's off the charts lib.

Glance over some of her views here.

It's crazy for the LA Times to be selling Ginsburg's views as anything but very liberal.

Because of Obama's background, he is unlikely to rely heavily on advisors to select candidates for the high court.

"The lawyer who will have the most influence on court appointments in the Obama administration will be Barack Obama," said Walter Dellinger, a Washington lawyer who represented the Clinton administration before the high court.

... In the Detroit interview, [Obama] praised Justices Breyer and David H. Souter, a Republican appointee, as "very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.

"That's the kind of justice that I'm looking for," he went on. "Somebody who respects the law, doesn't think that they should be making the law, but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice."

He added that the "special role" of the court is to protect "the vulnerable, the minority, the outcast, the person with the unpopular idea."

Obama claims to be against judicial activists yet he clearly believes that justices must do more than interpret the Constitution. There's a disconnect.

If there is a second most important influence on such appointments, it may well be the vice president. Sen. Joe Biden served on the Senate Judiciary Committee throughout his career, and was chairman during the fights over Supreme Court nominees Robert H. Bork in 1987 and Clarence Thomas in 1991.

Biden's role in the smearing of Bork and Thomas, and his disgraceful tactics of personal destruction to oppose a nominee shouldn't be forgotten.

Obama won't be looking at moderates or moderate liberals to fill any Supreme Court vacancies. The question is just how far to the Left his nominee or nominees will be.

It's possible that Obama will have an opportunity to make nominations to the Supreme Court, but it's certain that Obama will be shaping the lower federal courts.

In the next two years with the complete Dem control of Congress, he'll be able to swing the courts dramatically to the Left.

We may not know the names of Obama's nominees, but we know they will be judicial activists. To pretend that's not the case is a joke.