The Two Candidates: Judicial Appointments

One aspect of the Presidential campaign has gotten very little attention: judicial appointments. Perhaps it's because the courts seem remote from most people, the subject a little too esoteric. Most likely that's because most voters are unaware just how much impact the courts have on their individual daily lives.

The Supreme Court gets the most attention, no doubt (though that amount is hardly overwhelming), but the President appoints Federal judges as well, and, like SCOTUS, their appointments are for life. Apart from the effect Federal judges have on precedent and other legal matters, the positions are often a stepping stone to the Supreme Court itself. Justice Ginsburg served (13 years) on the U.S. Court of Appeals in D.C., as did Justices Thomas, Scalia, Roberts, and others before them. Justice Breyer served 14 years on the First Circuit.

There has been no end of Supreme Court decisions that do, indeed, have a considerable impact on the daily lives of everyone in America. Roe v. Wade is one of the most well-known in recent times, followed perhaps by the decision that gave Bush the election in 2000, or Kelo v New London. There have been dozens more. The Supreme Court has heard cases on the income tax, the right to bear arms, the legality of sodomy, private property and eminent domain, and dozens of other issues that affect Americans on all points of the political compass.

So, to my mind, one of the most critical aspects of choosing a President this time around is to consider what sort of court appointments he will probably make. Over the next four years there may be one and possibly two appointments made. Justice Stevens is 88; Justice Ginsburg is 75. Whoever wins the 2008 contest has a good chance (at least now, before we know his actions) of serving two terms. That span increases the odds of two additional seats coming open. Justice Scalia is 72; Justice Breyer is 70.

Who is elected this November could be as significant in terms of judicial appointments as when FDR packed the court in the late 1930s. There are numerous cases revolving around FDR's socialist policies that were decided by the courts then. Early on the Court largely opposed his New Deal plans, for example invalidating the National Industrial Recovery Act of 1933 in May of 1935.

With the Congress set to gain a filibuster-proof majority of Democrats this winter, there is only one branch left to act as a counterbalance. Of course, the Supreme Court and the other Federal Courts being staffed as they are is no great comfort. But the situation could still be far worse than it is now.

We know, since they said so explicitly, the type of judges that Obama and McCain would not appoint. At the Civil Forum at Saddleback Church last August, the moderator asked them point blank.

REV. WARREN: Which existing Supreme Court justice would you not have nominated?

SEN. OBAMA: I would not have nominated Clarence Thomas. (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 nominate Justice Scalia, although I don't think there's any doubt about his intellectual brilliance, because he and I just disagree.

There you have it. Obama acknowledges Scalia's brilliance, but wouldn't nominate him because he disagrees with his philosophy. Thomas, he claims wasn't experienced enough (that criteria apparently doesn't apply to the Executive Branch), and he disagrees with his views on the Constitution. Thomas is widely regarded as the most 'libertarian' (I would argue, Classical Liberal) justice on the court.

And Senator McCain's choices?

REV. WARREN: Which existing Supreme Court justices would you not have nominated?

SEN. MCCAIN: With all due respect, Justice Ginsberg, Justice Breyer, Justice Souter, and Justice Stevens.

REV. WARREN: Why? Tell me why.

SEN. MCCAIN: ... This nomination should be based on the criteria of proven record, of strictly adhering to the Constitution of the United States of America and not legislating from the bench.

Whom does he prefer? "Justices Alito and Roberts are two of my most recent favorites."

None of these justices are my favorites, but I'm not on the ballot. Anyway, what does it say about their respective selection criteria?

In the case of McCain, we can read it right off the quote above: Strict adherence to the Constitution. And what is Obama's? As with everything this wily candidate says, you have to dig. But there are lots of hints.

In a 2001 discussion on the Chicago PBS station, Obama had this to say about the Warren Court (universally considered to be liberal and 'activist'):

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court. I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order as long as I could pay for it I’d be o.k. But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. [emphasis added]

To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted and Warren Court interpreted in the same way, that generally the Constitution is 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... [emphasis added]

It doesn't get any clearer than that with Barack Obama.

What does that say about Obama's judicial philosophy? Even that he has thoughtfully provided in more detail, in a recent interview with the Detroit Free Press.

DFP: You voted against confirming both Justice Alito and Chief Justice Roberts (for the U.S. Supreme Court). You said you want justices who are passionate. ... You taught constitutional law for 10 years, so I'm wondering if you can tell us, outside the context of the current court, what justices would you use as models for your pick?

Obama: Well, it depends on how far you go back. I mean, Justice (John) Marshall was pretty good ... but those were some different times. There were a lot of justices on the Warren Court who were heroes of mine ... Warren himself, Brennan, (Thurgood) Marshall. But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today.

Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.

I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. ... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.

I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are 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 [his kind of judges] 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. [emphasis added]

That, I think is the kind of justice that I'm looking for -- somebody who respects the law, doesn't think that they should be making 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.

That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up. That's inherently the role of the court. And if somebody doesn't appreciate that role, then I don't think they are going to make a very good justice.

Let's revisit one sentence: "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."

Translation: If the Constitution doesn't permit the kind of social engineering the Justices think is suitable (and Obama would like to see), why they can just go right ahead and override it. Exaggeration?

Consider a portion of the first quote: "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..."

Worse, review this: "I mean, Justice (John) Marshall was pretty good ... but those were some different times."

Translation: There are no fixed principles. The Justices can (and should) make it up as they go along, with the overarching goal of achieving the desired social engineering outcome.

If you doubt that, read Justice Breyer's book Active Liberty (the man whom Obama names favorably). In it, he says:

Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further?

What is he seeking to further? Obama might well be channeling Breyer when he said in the third 2008 Presidential debate

"...the most important thing in any judge is their capacity to provide fairness and justice to the American people." And "I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through."

"Going through"? Such as? He made his meaning (for once) surprisingly clear when he added:

"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. And that's the kind of judge that I want."

That is what is known as legislating from the bench for the purpose of social engineering, the very thing McCain disdained in the Civil Forum last August. This is in stark contrast to the view of Montesquieu (quoted in an excellent article by Rep. Tom Feeney (R-Florida):

"Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

As Northwestern law professor Steven Calabresi put it in a Wall Street Journal editorial:

Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation's courtrooms.

McCain v Obama. You be the judge.