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Who Would Barack Obama Nominate to the Supreme Court?:
When asked back in a November primary debate to say what kind of Justice he would want to nominate to the Supreme Court, Barack Obama responded:
  I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it's not just the particular issue and how they rule, but it's their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.
  . . . [S]ometimes we're only looking at academics or people who've been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.
  Does anyone know of additional statements Obama has made in response to the same question (or similar ones) before or since? Obama made some statements about these issues when he announced his decisions to vote against the confirmation of Chief Justice Roberts and Justice Alito, but I don't know how much else is out there.

  UPDATE: Here's another statement Obama made:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
  UPDATE: Over at Slate, Emily Bazelon suggests that Obama would want to find a confirmable candidate who would vote like a Brennan or a Thurgood Marshall:
On Obama's staff, [the] absence [of a Thurgood Marshall-type Justice] is also keenly felt. How to fix that? "We'd want a nominee who would do what John Roberts did," one staff member said. "You go through the process and say 'Hey, I'll look at each case as it comes.' You have a moderate temperament. You're affable and everybody likes you. And then you get up there, and after a year and a half, you vote on the opposite side from John Roberts in every single case where that's warranted and it matters."
UPDATE: Commenter GMUSL'07 writes, "And this guy went to Harvard Law? This is one of the most twisted misconceptions of a Judge's role that I've ever seen." I went to Harvard Law a few years after Obama, but his view of the judge's role was by far the dominant view among the Harvard Law School faculty and student body when I was there in the mid-1990s. Those that questioned this view were generally told that they should join the Federalist Society — and the Federalist Society had very few members.
Justin (mail):
I don't know what sort of statements he's said, but I'm pretty sure that Sotomayor will be the most likely next in no matter which of the two is nominated, if the Democrat wins.
2.26.2008 2:31pm
EvilDave (mail):
Funny, I thought the rule of a SC Justice was to interpret the Constitution, not act as some type of moral fairness cop.
2.26.2008 2:44pm
EvilDave (mail):
PS:
If Olympic high jumper Javier Sotomayor becomes a Justice, I'll be thrilled.
2.26.2008 2:45pm
GMUSL '07 Alum (mail):
Wow. Just wow. And this guy went to Harvard Law?

This is one of the most twisted misconceptions of a Judge's role that I've ever seen. Watch out for Earl Warren's reanimated and augmented corpse, coming to make a mockery of a courthouse near you.
2.26.2008 2:53pm
Archit (www):
Tom Goldstein's short list has a bunch of good suggestions of people without the traditional experience: governors, attorneys general, state court justices. I'd love to see what would happen if he nominated Gov. Granholm. A Canadian with a degree from Berkeley on the Supreme Court? That would piss off some people.
2.26.2008 2:55pm
mporcius (mail):
It's good to see that Obama realizes the Supreme Court is a mixture of "Backup Legislature if you got beat in the Congress" and "Service Provider for people with gripes" and not some kind of court.
2.26.2008 2:57pm
SP:
I'm glad they are smarter than me, so when a class of people arbitrarily gets additional rights at the expense of others, I'll have no grounds to question the decision.
2.26.2008 3:04pm
Wahoowa:
GMUSL:

You know, everyone talks about and hates on Earl Warren, but if it's a choice between that and the reanimated corpse of William Brennan, I'll take Warren ten times out of ten.
2.26.2008 3:09pm
A.C.:
I'm always shocked by how many law school graduates see the Supreme Court's role as exactly what Obama said. I can't dispute that that might be ONE of the Court's roles under a limited set of circumstances... but the ONLY role? Or even one of the top three? I think not.

Cf. all that noise about ideological bias in academia.
2.26.2008 3:13pm
Cornellian (mail):
I'm always shocked by how many law school graduates see the Supreme Court's role as exactly what Obama said. I can't dispute that that might be ONE of the Court's roles under a limited set of circumstances... but the ONLY role? Or even one of the top three? I think not.


Compare the above comment with the actual post:

And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.


He doesn't say it's the sole role of the Court or even the primary role.
2.26.2008 3:19pm
Fingerprint File:
Did everyone expect Obama to say he would only appoint strict constructionists in the mold of Scalia or something? His comments strike me as a mainstream liberal conception of the Court, whatever the merits of such a conception.
2.26.2008 3:19pm
Cornellian (mail):
Funny, I thought the rule of a SC Justice was to interpret the Constitution, not act as some type of moral fairness cop.

The Bill of Rights exists precisely to protect individuals and small groups from a democratic majority. If your position is already the popular, majority held position you don't need the Bill of Rights to protect it because the legislature isn't going to vote to prohibit it. So stating that a Supreme Court judge ought to have that purpose in mind is neither surprising nor new.
2.26.2008 3:22pm
Cornellian (mail):
"Backup Legislature if you got beat in the Congress"

Because it's not as if conservatives would ever turn to the courts when they got "beat in the Congress" *cough* McCain-Feingold *cough*.
2.26.2008 3:24pm
dgs (mail):
He apparently made similar comments at a Planned Parenthood event. It is clear that he does not put a premium on the rule of law:

Speaking at the Planned Parenthood conference in DC this afternoon, Barack Obama leveled harsh words at conservative Supreme Court justices, and he offered his own intention to appoint justices with "empathy." Obama hinted that the court's recent decision in Gonzales v. Carhart — which upheld a ban on partial-birth abortion — was part of "a concerted effort to steadily roll back" access to abortions. And he ridiculed Justice Anthony Kennedy, who wrote that case's majority opinion. "Justice Kennedy knows many things," he declared, "but my understanding is that he does not know how to be a doctor."



Apparently "empathy" for the partially born does not count.
2.26.2008 3:26pm
Cornellian (mail):
He apparently made similar comments at a Planned Parenthood event. It is clear that he does not put a premium on the rule of law:

Nothing in your quote implies anything about how Obama feels about the rule of law.
2.26.2008 3:30pm
Rich B. (mail):
A lot of this i inevitably political, and I can't understand people who seem to think that "strict construction" has inherent meaning.

A law prohibits some conduct, but doesn't discuss remedies. Is there a private right to bring an action in federal court, or only a right by the Department of Justice to bring a criminal claim?

A law has a short statute of limitations, and the plaintiff claims seven discriminatory events stretching back years. Is there an "ongoing violation" or a seven independent event (six of which happened before the statutory period)?

These questions don't answer themselves, and require an examination of the likely results of each decision. Sometimes, you have to get your head out of a law book, though, to recognize this.
2.26.2008 3:30pm
Witness (mail):
I read that the madrassa-educated Barack Hussein Obama plans to appoint judges who will implement sharia from the bench.
2.26.2008 3:31pm
MoTown (mail):
Conellian--

Majorities don't need the protection of the Bill of Rights? Perhaps not from encroachment via democratic process, but what about encroachment on their constitutional rights by the courts? How do you explain affirmative action?
2.26.2008 3:33pm
alkali (mail):
GMUSL '07 Alum remarks:

Wow. Just wow. And this guy went to Harvard Law? This is one of the most twisted misconceptions of a Judge's role that I've ever seen.

Inscriptions on the frieze in the reading room of Harvard's law library:

IUDICATE EGENO ET PUPILLO HULIMEN ET PAUPEREM IUSTIFICATE [Judge the poor and fatherless, do justice to the afflicted and needy.]

-- Psalm 82 (81 in Vulgate)

NOLI QUAERERE FIERE IUDEX NISI VALEAS VIRTUTE IRRUMPERE INIQUITATES [Seek not to be made a judge unless thou have the strength to take away iniquities.]

-- Ecclesiasticus VII, 6 (Latin Vulgate Bible)
2.26.2008 3:39pm
Houston Lawyer:
I don't want a justice system based upon biblical teachings either.

All of the statues of justice show a blindfolded woman. Obama seems to say that we should judge people according to who they are rather than what they have done.
2.26.2008 3:48pm
alkali (mail):
I don't want a justice system based upon biblical teachings either. All of the statues of justice show a blindfolded woman.

Bible no, Roman mythology yes!
2.26.2008 3:53pm
Q the Enchanter (mail) (www):
Oh yeah, absolutely -- people who don't agree that the Supreme Court should categorically eschew considerations of fairness in interpreting terms like 'equal protection' or 'due process' or 'just compensation' or 'excessive bail' or 'cruel and unusual punishment' are, like, totally twisted.

And I quite agree that there's a nontrivial possibility that Obama is actually against the rule of law.
2.26.2008 3:55pm
c. vanhallenbeck:
The first question to ask is, did Obama in fact teach constitutional law for ten years? I don't think so.
2.26.2008 4:00pm
Doug B. (mail) (www):
As detailed here, Adrian Vermeule has made an interesting set of arguments that we should have at least one "lay Justice" -- i.e., a Justice who is not a lawyer. Against that backdrop, the Obama comment seems quite mainstream.

More generally, as detailed in this post, a lot of historically great Justices (acorss all the traditional spectrums) have come from outside the circuit courts and the academy. And, notably, the Supreme Court has traditionally been our most diverse federal branch (compared to the president/VP and the Senate).
2.26.2008 4:00pm
Cornellian (mail):
Majorities don't need the protection of the Bill of Rights? Perhaps not from encroachment via democratic process, but what about encroachment on their constitutional rights by the courts? How do you explain affirmative action?

If you think courts are misconstruing the constitution to "encroach" on the rights of majorities, then giving the courts additional "rights" to construe doesn't seem like a logical solution to that problem.

And affirmative action was enacted by Congress, not the courts. If you're complaining about encroachment by Congress, your remedy is in the next election.

Anyway I'm not just talking about majority/minority in the ethnic or racial sense, I'm talking about the scope of protection intended by the rights contained in the Bill of Rights. The Sixth Amendment protects people charged with crimes, for example, even though most people are never charged with one.
2.26.2008 4:01pm
A.C.:
Cornellian -

I was zinging the people I know, not Obama directly. But they are his constituency, and in some cases his activists. He's obviously playing to them.

I would be interested to hear his views on other roles for the Supreme Court, and how he views their relative importance. Somehow I don't think I will.
2.26.2008 4:05pm
Bill R:
Rich B:
[...] I can't understand people who seem to think that "strict construction" has inherent meaning.

A law prohibits some conduct, but doesn't discuss remedies. Is there a private right to bring an action in federal court, or only a right by the Department of Justice to bring a criminal claim?

A law has a short statute of limitations, and the plaintiff claims seven discriminatory events stretching back years. Is there an "ongoing violation" or a seven independent event (six of which happened before the statutory period)?

I'm not a lawyer, but aren't these two examples completely unrelated to the Supreme Court's role in interpreting the Constitution and hence bear little relation to "strict construction". Interpreting statutes to resolve, for example, an apparent ambiguity (rather than their "Constitutionality") would seem to rarely require any interpretation of the Constitution.
2.26.2008 4:06pm
Thief (mail) (www):

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.


So... how about Janice Rogers Brown? ;)
2.26.2008 4:07pm
Cornellian (mail):
I'm not a lawyer, but aren't these two examples completely unrelated to the Supreme Court's role in interpreting the Constitution and hence bear little relation to "strict construction". Interpreting statutes to resolve, for example, an apparent ambiguity (rather than their "Constitutionality") would seem to rarely require any interpretation of the Constitution.

The Supreme Court interprets both federal statutes and the Constitution (sometimes state statutes and common law as well). The examples cited aren't "completely unrelated" to interpreting the Constitution, nor does the handy catchphrase "strict construction" apply only to the Constitution.

For example, the Sixth Amendment says you have the right to counsel, but it doesn't say what (if any) remedy you get if the government violates that right. There are any number of questions arising from that fact for which the text of the Constitution provides no answer.
2.26.2008 4:12pm
Kovarsky (mail):
doesn't that idiot obama know that the constitution's meaning is capable of being objectively determined and fixed at a given point of time. doesn't he know that arbitrary, result-oriented indicia of legitimacy rule the day? doesn't he understand that this sort of nonsense drives us from the platonic ideal of civic discourse involving the judiciary, which now centers around strict constructionist.

for the love of god barry, please get a clue! speak in the favored idiom of george mason!
2.26.2008 4:16pm
BRM:
Of course judges should have empathy. Just because a judge empathizes with another person does not mean the judge will ignore the law to rule in that person's favor. The empathic judge at least recognizes the other side has a legitimate argument, even if not a winning argument.

It's like the difference between 12(b)(6)ing a case and imposing Rule 11 sanctions.
2.26.2008 4:16pm
cjwynes (mail):
Of course this is Obama's view. This is exactly the kind of stuff I'd expect a person to say who was only a decade removed from being no more than a community organizer. The last thing we need is more social workers on the bench. So long as "protecting vulnerable people" does not extend to rocks, trees and squirrels, Obama's nominee will be marginally better than Justice Douglas.

Of course, the 7 justices who joined the opinion in the case of that handicapped golfer vs. the PGA reveal the strong appeal of stretching the law in order to be perceived as compassionate, and none of those justices is a total fruitcake like the court used to have. It happens from time to time that the Court does this, whereupon Scalia will write an amusing dissent recounting the parade of horribles that would follow if the logic of the decision were ever applied to anything else, and (because all the "compassionate" justices are perfectly aware of that fact) the decision gets quietly tucked away and never mentioned again.
2.26.2008 4:18pm
ephus (mail):
Obama's statement is a near-replication of the thesis of Mort Horwitz's legal history class on the Warren Court: the "Outsider Thesis." I would not be surprised if Obama took that class while he was at HLS.
2.26.2008 4:18pm
alias:
If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.

People with "life experience" who feel screwed by the system are common in the prison population. Perhaps what the Supreme Court really needs is Suge Knight. Or, if he's not confirmable, this list might be a good backup pool.
2.26.2008 4:24pm
RBG (mail):
Two points:

Point the first:
Why should we be surprised that the Oprah candidate wants to turn the Supreme Court into, well, "Oprah"?

Point the second:
The comment about Kennedy was extremely stupid when Lithwick said it - alert Hillary, as it looks like Obama's plagiarizing again - and it sounds no better coming from Obama's mouth. If medical determinations should play any role in determining the legitimacy of a law regarding abortion, then surely the legislature has far more institutional competency to determine where that line should be drawn than does a court. Obama and Lithwick get this wrong on so many levels, that the degree of sloppy thinking this evidences should cast doubts on their intellectual ability. First, if a lack of medical knowledge matters here, it counsels against the Supreme Court disturbing the legislative status quo - as they're not doctors, under Obama's reasoning, shouldn't they refrain from making any decision regarding abortion? If so, Obama's view should call into question the legitimacy of Roe v. Wade and should insist of leaving the PBA act intact. This is particularly true since a far higher proportion of legislators have medical credentials than do justices of the Supreme Court.

And even apart from the question of abortion, shouldn't Obama's principle be applied in all other specialist fields that come before the Court? How many justices have ever owned a small business or managed a multinational? Exactly. So how are they competent to pass judgment on employment decisions or the business justification of SPVs that allowed the company to move certain assets or liabilities off the books? And last I checked, few justices have engineering backgrounds, so I trust that an Obama justice would commit herself during her confirmation hearings to recusing herself from all product liability, OSHA, and EPA cases, or at least those that require justices to make calls based on the current state of the science. And don't even get me started on antitrust? Again, as business ignoramuses, who, apart from perhaps Roberts, can have the gall to pass judgment on whether a purportedly anticompetitive practice in fact had a legitimate business justification.

I mean, really, the list goes on and on and on. The "argument" is a cheap rhetorical trick that reflects only the intellectual laziness of its proponent.
2.26.2008 4:24pm
alias:
I'd hate to see a "lay justice" deal with all of the ERISA, AEDPA, IDEA, Title VII, RFRA, tax, and other statutory cases on the docket. Perhaps the "lay justice" should be recused from every case that's decided before June.
2.26.2008 4:27pm
Duffy Pratt (mail):
He want's to look at a pool of applicants that excludes:

1) academics
2) lower court judges
3) people who have had the system work for them

Who, in the legal community, can have the kind of credentials it would take to get confirmed, and not fall into any of these groups. I guess Harriet Miers was close, but once she got to be the first woman to head the Texas Bar Association, I think that probably showed that the system was working for her.

I guess there might be some public defenders and legal aid lawyers who lose alot. Any other groups I'm not thinking of?
2.26.2008 4:28pm
Left-Right-Left-Right:
The first question to ask is, did Obama in fact teach constitutional law for ten years? I don't think so.

Personally, I've been wondering whether he's actually a senator. How much do we really know about the guy?
2.26.2008 4:30pm
Kelvin McCabe:
I think having a justice who is not a lawyer, as someone noted above, is a great idea. If you have to pick a lawyer, give me one who is currently practicing and trying cases.

And everybody gives Warren shit, but if it weren't for him, the quasi police state we live in now would be that much more worse. And it would have been implemented or blessed from on high by so called "conservative" Sup Ct justices. How's that for irony.

Some of Brandeis' work I would compliment very highly as well.
2.26.2008 4:36pm
Guesty:
I still don't understand why it's bad to have someone on the Court who has "the heart, the empathy ***... selecting my judges."

Obviously that won't be the only criteria by which he would select judges—so why is it so offensive to the VC that these factors be included in the calculus?
2.26.2008 4:43pm
Justin (mail):
At the district court level, there is a lot of equitable decisions and discretion, in things ranging from sentencing (and other remedies-fashionings of sorts) to discretionary relief from procedural errors, to certain factfindings in bench trials.

The argument, at least for district court judges, that empathy and an understanding of social realities, is not part of the Judge's role, seems to be a minority, to say the least.

Furthermore, the argument that the Fourteenth Amendment should be interpreted specifically " to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout," as an academic matter, has been around at least as long as Charles Black's Lectures in New Orleans, and probably further. This is about mainstream as one gets, even if one can reasonably disagree.
2.26.2008 4:48pm
RBG (mail):
All: Please forgive my unconscionable typos and punctuation errors above. Extreme fatigue is inhibiting my ability to express myself clearly.

Guesty: I think the objection comes down to this - when Obama (or any left-of-center politico) uses this term, it's code for a certain mental disposition. Do you really think that when he says he'll look for folks with empathy, that Obama means empathy toward the small business owner struggling to get his business off the ground, the rural landowner struggling to comply with EPA regulations while putting food on the table for his family, or the urban landowner fighting against a local government seeking to condemn her house? Do you think he means empathy toward the unborn, toward school boards that attempt to create space for their religious students to express themselves, toward church groups who want to make hiring and firing decisions based on their religious convictions? If you do, can I get some of what you're having, because it's got to high quality to foster that kind of delusion...
2.26.2008 4:55pm
Q the Enchanter (mail) (www):
"I'd hate to see a "lay justice" deal with all of the ERISA, AEDPA, IDEA, Title VII, RFRA, tax, and other statutory cases on the docket. Perhaps the "lay justice" should be recused from every case that's decided before June."

Why? Supreme Court justices with only J.D.s have to deal with all kinds of nonlegal materials in economics, math, science, engineering, medicine, and so forth. Should they recuse themselves in cases where such topics arise? And do you really think it would be any more difficult for, say, a Ph.D. in Public Policy to make sense of FISA than it would be for a J.D. to evaluate a regression analysis?
2.26.2008 4:59pm
OrinKerr:
Guesty,

For the record, I absolutely and strongly agree with Obama that a judge should have "the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old." The real question is what the judge should do upon realizing this. I think it is correct and necessary for a judge to factor this into his decision where the law calls on the judge to do so; the question is whether a judge should factor this into his decision where the law does not call on him to do so.
2.26.2008 4:59pm
Guesty:
@RBG:

I don't understand how the desire for the justices to be empathetic and possess a broad (and, thus far on the Court, unrepresented) array of life experiences reflects a "certain mental disposition."
2.26.2008 5:08pm
Zombie Richard Feynman (mail) (www):
Orin, did you get the sense that Obama's comments implied that a Judge should look to fairness when the law does not call on him to do so?
2.26.2008 5:09pm
Guesty:
Orin:

Thanks for your comment. I think I agree. Has Obama said anything that lead you to believe he would appoint judges that would factor their (for lack of a better term) "life experiences" into a decision where it might be inappropriate? I don't think I've seen any such statement (I'm discounting the belief that he's speaking in "code").
2.26.2008 5:13pm
Joe Gator (mail):
Perhaps I am reading too much into it, but my biggest problem with Obama's quote(s) is the implicit assumption that somehow the justices currently on the Court lack the capacity to "empathize" with the great unwashed.

What is this based on?
2.26.2008 5:13pm
OrinKerr:
Guest,

It depends what you think it means to factor in these things "inappropriately". Justice Douglas's sense of when it was proper to factor in these factors was very different than Justice Harlan's. I take the gist of Obama's message to be that he would nominate Justices who would see these issues as relevant in a broad range of circumstances where the law has not before seen such issues as relevant. That is, he'd be looking for a Justice Douglas more than a Justice Harlan. Do you disagree?
2.26.2008 5:16pm
A.C.:
I thought the question was whether a judge was required to CHANGE the law on behalf of the downtrodden. If it's a matter of justice under current law in a particular case, I have no problem with it. Same if there's a very straightforward constitutional argument, which in my mind does not include penumbras.

A lot of lawyers have this huge mental overhang from the civil rights cases. Those were important, but they seem to have created a major bias in favor of (1) judicial action on social issues, (2) at the federal level, (3) on the presumption that the country can never be persuaded to do anything innovative on the legislative side. Any one of these elements in the bias may be problematic with regard to a given issue, and I think it's fairly rare for all three to be pulling in favor of Supreme Court activism. The civil rights cases therefore strike me as the exception, not the rule.
2.26.2008 5:17pm
OrinKerr:
Joe Gator,

If you read Obama's statements on why he voted against Roberts and Alito, he says that he thinks Roberts and Alito are insufficiently attuned to the needs of the powerless -- with the evidence I believe being their vote in favor of the powerful.
2.26.2008 5:18pm
dgs (mail):
The problem is that Obama seems to suggest that he would select judges who have "empathy" for only certain categories of litigants that he apparently favors. The suggestion is that he thinks that this will influence judicial outcomes (otherwise, why say it--if I am wrong, his statements constitute meaningless political rhetoric, but I will not attribute such motives to Senator Obama--I think he means what he says). I think it is fair to say that this constitutes a failure to put a "premium" on the rule of law. Basing decisions on the identity of the litigants (even in part) rather than the merits of the case undermines ideal of equality before the law and thus the rule of law itself. If Senator Obama's friend Oprah and his friend Ted Kennedy have a contract dispute, I would not expect a judge to base his/her decision on "empathy" for Oprah because she is an African-American woman who has overcome a lot in her life, whereas Kennedy is not a member of a minority group and had a privileged upbringing. I would expect the judge to try to interpret the contract in accordance with the intentions of the parties and try to arrive at a correct outcome. I expect that is what most Americans think judges do and should do. I also believe that is what many judges appointed by prior Democratic presidents try to do and believe they are obligated to do. There is nothing in Obama's statement that suggests that this is what he is looking for. He mentions only "empathizing" with certain groups he apparently favors. It is as if a Republican sought judges who would "empathize" with the plight of the unborn, crime victims, victims of excessive government regulation, taxation, or racial preferences. That kind of judicial bias in favor of certain litigants seems to be Obama's primary judicial selection criterion. Moreover, it is no answer to say that judges have discretion to decide certain issues: to say judges may exercise discretion is not to say that they have discretion to base their decisions (even in part) on the identity of the litigants and to favor certain litigants based on their age, race, physical abilities, or sexual preferences.

Maybe Orin can give us an example of a situation in which the law calls on a judge to "factor into his decision" the identity of the parties--It is hard for me to think of a context in which the law calls for a judge to favor a litigant because of their race, gender, sexual preference etc... The comments seem to be contemplating civil rights lawsuits or something along those lines, but I am unaware of any principle of law that says judges must always favor or bias their decisions in favor of civil rights plaintiffs based on "empathy" for them. And what if the civil rights plaintiff is a white male--Obama would seem to contemplate no "empathy" there. Along the same lines, what if the defendant and plaintiff in the lawsuit are members of Obama's favored groups--how does the "empathy" principle apply there?

Again, if "empathizing" with certain litigants or "factoring in" their identity does not mean favoring them or basing judicial outcomes on the identity of the litigants, then Obama's statement is meaningless (i.e., I don't think he is saying that he wants judges who will sympathize with these favored groups who come before them in court and not do anything about it--i.e., I don't think he is trying to give brownie points to "good people").
2.26.2008 5:30pm
Joe Gator (mail):
Orin,

Sohis argument is that Alito and Roberts have voted for "the powerful" on every single case that has crossed their desk? I find that hard to believe. If he wants to make that statement he should back it up with specific instances and an argument as to why they interpreted the law incorrectly. Unfortunately, seeking specifics from the King of Platitudes is an exercise in futility.
2.26.2008 5:30pm
Guesty:
Orin,

I don't think Obama is as ideologically driven as Justice Douglas was. I imagine Obama appointing someone more along the lines of a Justice Breyer (except without the mid-Atlantic lilt). I think Obama would be interested in Justices who understand the advantages of an engaged government but whose decisions might be influenced by their own personal interactions with government.
2.26.2008 5:34pm
Anderson (mail):
Obama's campaign rhetoric is worth its weight in air.

Anyone he nominates will have to be able to pass a Republican filibuster.
2.26.2008 5:37pm
Malvolio:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
Am I the only person thinking, "Hmmm, except for the gay part, he sounds like he's describing Clarence Thomas."
2.26.2008 5:37pm
GV:

The real question is what the judge should do upon realizing this. I think it is correct and necessary for a judge to factor this into his decision where the law calls on the judge to do so; the question is whether a judge should factor this into his decision where the law does not call on him to do so.

When you frame it like this, nobody could disagree with you. On one side, you have judges who will follow the law. On the other side, you have judges who don’t. This is simply the conservative framing of the issue. No serious liberal thinker, as far as I know, contends that judges should regularly ignore the law whenever they think it is unfair. You’re setting up a straw man.

I don't think Obama wants to nominate people who want to inject fairness into their decision making process against what the law requires. The real debate, it seems to me, is when is the law unclear enough to allow a judge to use his or her sense of fairness in determining the legal answer to a question. If the law is truly clear and requires X result, I don’t think Obama is saying, I want a judge who will conclude not X, if fairness requires it. Instead, I suspect what he means is that when the law is ambiguous and can lead to X or Y as the correct decision, if Y is the more fair result, the judge should select Y. (A conservative judge, on the other hand, might do what he or she thinks is most economically efficient result.)

Judges with different backgrounds might also simply view a law as potentially allowing for a more diverse set of legal results. This is not to say that they do not believe we should “follow the law.” Instead, the controversy is over what the law allows. I think an african-american judge who grew up poor and feared she would be raped or killed in her neighborhood might have a different take, for example, on whether a certain gun restriction is unreasonable and the relationship between guns and self defense. But that judge is still trying to apply the law, but her experience will simply shape how she views the law.
2.26.2008 5:40pm
Westie:
Joe Gator,

Perhaps I am reading too much into it, but my biggest problem with Obama's quote(s) is the implicit assumption that somehow the justices currently on the Court lack the capacity to "empathize" with the great unwashed.

What is this based on?

Most likely that Supreme Court Justices are far removed from the "everyday life" that most of us experience.
For the Supreme Court's view of cars, see Wyoming v. Houghton, Cardwell v. Lewis (people don't keep their personal belongings in cars), and Maryland v. Wilson (passengers and drivers are often in criminal cahoots).
2.26.2008 5:43pm
Jackson Benson (mail) (www):
I taught constitutional law for 10 years,

Is that really true? He certainly wasn't an actual professor; you can't make it as a full-time Chicago law prof for 10 years with no legal publications. So at most he was an adjunct. Now did Chicago really have a need for an adjunct to teach Con Law? It's not as if they're hurting for great Con Law professors there.

I'm not saying that Obama is lying or anything. I'm just curious. He keeps putting out this image of a constitutional law professor, when in fact he may have done something more like a civil rights clinic. (Which would still be cool, but hey, people were ragging on Huckabee for saying he had a degree in theology when it was really in "religion").
2.26.2008 5:50pm
Cornellian (mail):
Obama's campaign rhetoric is worth its weight in air.
Anyone he nominates will have to be able to pass a Republican filibuster.


I guess that means that once a Democrat is in the White House the Republicans will have forgotten about their prior insistence that a judicial filibuster is unconstitutional and that every nominee is entitled to an up or down vote.
2.26.2008 5:52pm
Mary Katherine Day-Petrano (mail):
The Federal judiciary does need many, many more disabled Judges, and one can only imagine the Thurgood Marshal of autism/The Americans With Disabilities Act.

How can this accomplishment ever come to pass, however, when (1) State Bars so fear autism they will not license qualified people with autism, and (2) the Federal Judicial Vacancy Application forms contain questions that effectively lump "autism," an entire body system neurological disability, in with solely "mental disorders," used as exclusionary criteria to ensure NO person with autism will ever meet the screening criteria to become a Federal Judge?

Is there ONE person with autism who has ever been:
(1) Law clerk to a United States Supreme Court Justice?
(2) Admitted to any State Bar?
(3) Admitted to any Federal Bar?
(4) Admitted to the United States Supreme Court Bar?
(5) President of any State Bar?
(6) Chair of any State Bar Examiners?
(7) State Court Judge?
(8) State Supreme Corut Justice?
(8) Federal District Court Judge, Magistrate, or Bankruptcy Judge?
(9) United States Court of Appeal Judge?
(10) United States Supreme Court Justice?

I believe there is the highest order of probablility this is a rhetorical question.

Who says a person with autism would not be able to handily perform the essential functions of a Federal Judge?

Why do we continue to measure the abilities of a person with different autism thinking styles by the A-B-C-D standardized tests that do measure only their disabilities rather than their abilities?

There a many barriers to overcome before Obama will find his disabled Thurgood Marshall, so long as disabled people with autism are completely excluded from sharing the American Dream.

But, if he is serious, the one place he will want to look is at those people with disabilities who have personally had the courage and perserverance to face the massive wall of Americans With Disabilities Act resistance by the States.

That person, like Obama himself, will be a diamond in the rough, created under fire and extreme pressure, until his/her value, abilities, and intelligence shines through.
2.26.2008 5:53pm
Cornellian (mail):
Am I the only person thinking, "Hmmm, except for the gay part, he sounds like he's describing Clarence Thomas."


I guess you could regard Clarence Thomas as old but I didn't know he was disabled.
2.26.2008 5:54pm
Rexroth:
or empathetic.
2.26.2008 5:58pm
Rich Rostrom (mail):

"you vote on the opposite side from John Roberts in every single case where that's warranted"

I have no problem with that. But then, I don't think there are any cases where voting on the opposite side from Chief Justice Roberts is warranted.
2.26.2008 6:09pm
Mike& (mail):
The problem is that Obama seems to suggest that he would select judges who have "empathy" for only certain categories of litigants that he apparently favors.



This is a good point. I have a lot of empathy for people who are wrongfully sued. It's a costly and miserable affair.

The problem is that most lack true empathy. What people do is pick sides. People who say "I hate corporations" have no empathy when a company has a frivolous lawsuit brought against it. People who hate criminal defendants have no empathy for a defendant who was denied procedural protections and thus may have been false convicted.

That people so reflexly choose sides reminds me how much like monkeys we still are.
2.26.2008 6:10pm
bittern (mail):
Good thread. Nice pick, Orin.
2.26.2008 6:17pm
LM (mail):

That is, he'd be looking for a Justice Douglas more than a Justice Harlan. Do you disagree?

I'm sorry I've never gotten to see a Court that ranged from a Douglas to a Scalia/Thomas, with the remainder being spread across the terrain in between. Has there ever been a Court that diverse?
2.26.2008 6:19pm
LM (mail):
Cornellian,

The Bill of Rights exists precisely to protect individuals and small groups from a democratic majority. If your position is already the popular, majority held position you don't need the Bill of Rights to protect it because the legislature isn't going to vote to prohibit it.

Give that ACLU Bill of Rights crap a rest. We're talking about the Constitution!
;>)
2.26.2008 6:23pm
theobromophile (www):
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Well, Clarence Thomas understands what it's like to be African-American, poor, and to grow up with a difficult family structure.

Chief Justice Rehnquist understood what it was like to be old, sick, and dying. (Does that qualify as "disabled?")

Young single moms tend to not go to college, let alone law school, let alone one that would be of a sufficiently high caliber to make one a reasonable candidate for the federal judiciary. (Actually, both girls and boys who have sex as teenagers, regardless of race, family, and socioeconomic factors, are less likely to go to and graduate from college.)

So throwing out the single mom thing as a pipe dream, what this person is really saying is that we need a judicial nominee who is the amalgamation of Thomas and Rehnquist. :)
2.26.2008 6:49pm
theobromophile (www):
"This person" being Obama - in my fatigue, I somehow transposed that statement with the one made by one of Emily Bazelon's staff members. Mea culpa.
2.26.2008 6:55pm
Cornellian (mail):
we need a judicial nominee who is the amalgamation of Thomas and Rehnquist.

Judge Tomquist is ready for his closeup!
2.26.2008 7:02pm
runape (mail):
"Is that really true? He certainly wasn't an actual professor; you can't make it as a full-time Chicago law prof for 10 years with no legal publications. So at most he was an adjunct. Now did Chicago really have a need for an adjunct to teach Con Law? It's not as if they're hurting for great Con Law professors there."

He was a senior lecturer, a position usually reserved for a small number of instructors (such as Judges Easterbrook, Posner and Wood) who, because of other professional obligations, cannot commit to an ordinary professorship. He was reportedly offered tenure on several occasions, and declined.
2.26.2008 7:03pm
Brian G (mail) (www):
This is hilarious:


We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.


That would be fine for the Secretary of Health and Human Services. Obama will nominate the closest thing he can find to Steven Reinhardt who is 20-25 years younger than Reinhardt, who is the worst appellate judge in America.
2.26.2008 7:21pm
David M. Nieporent (www):
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
It's the James Watt theory of jurisprudence.
2.26.2008 7:52pm
Oren:
I guess that means that once a Democrat is in the White House the Republicans will have forgotten about their prior insistence that a judicial filibuster is unconstitutional and that every nominee is entitled to an up or down vote.
How dare you attack the institutional sanctity of the Senate!
2.26.2008 8:03pm
DangerMouse:
"No serious liberal thinker, as far as I know, contends that judges should regularly ignore the law whenever they think it is unfair. You’re setting up a straw man."

That is not a straw man, it is plain as day. Liberals believe that white men (and men in general) should be punished, that big corporations are evil, that the unborn aren't even human, that victims are always to be preferred (unless they're criminal victims, in which case the criminals should be preferred), that the government should always economically prevail against an individual, and that Europe is better than America.

Liberals want judges to rule based on those preferences. Yes, in a plain vanilla contract dispute between a man and a woman, they want the woman to win. In a plain vanilla contract dispute between a minority and a white man, they want the minority to win. Look at the media coverage, and the reaction of liberal Democrat senators, to judges who ruled in plain vanilla cases against women &minorities, and who were subsequently nominated to higher benches by President Bush? They were unfairly demonized for being racists and sexists.

Liberals always want their hands on the scale.
2.26.2008 8:16pm
Bob from Ohio (mail):

young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.


Let's see. He wants a 65+ black female with a disability who was a heterosexual as a teenager but became a lesbian later.

Anyone with a candiadte who meets all those requirements.?
2.26.2008 8:38pm
Jackson Benson (mail) (www):
He was a senior lecturer, a position usually reserved for a small number of instructors (such as Judges Easterbrook, Posner and Wood) who, because of other professional obligations, cannot commit to an ordinary professorship. He was reportedly offered tenure on several occasions, and declined.

Sorry, but this seems to be BS. Someone who never published anything — not even when a member of the Harvard Law Review, when he was guaranteed two publication slots — was offered tenure at Chicago? No way. Do you have any evidence that this is actually true?
2.26.2008 9:24pm
OrinKerr:
Jackson Benson,

I believe Obama was asked about taking a tenure-track position, not a tenured position.
2.26.2008 10:16pm
Toby:
Mary Katherine Day-Petrano clearly shuld be apointed to the seat which shal hereafter be reserved for the autistic-american. As a percentage of the population,it clearly warrants one of the twelve seats in perpetuity.

THe more important issues, which every one of the MSM is dying to ask, is willl there be a litmus test for empathy with the young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. Because we all know, as the Democratic senators have tols us time and again, there is nothing worse than a litmus test.
2.26.2008 10:20pm
theobromophile (www):
As a percentage of the population,it clearly warrants one of the twelve seats in perpetuity.

As opposed to one of the nine seats reserved for the numerically challenged? ;)

If the proper order were lesbian, then mother, you could find a graduate of an all-women's school who was a LUG. But teenage mom, then lesbian? Tough call, unless the former drove her to the latter.
2.26.2008 10:46pm
Toby:
Well played, theobromophile. I must have FDR on my mind tonight.

And clearly, the innumerate require 120% of the court.
2.26.2008 11:00pm
LM (mail):
DangerMouse,

If that's your opinion of liberals, why would you even want to live in a country where as of now liberals are preferred over conservatives?
2.26.2008 11:46pm
Jackson Benson (mail) (www):
Orin -- do you know what specific course Obama actually taught? Again, I have my doubts that a law school with David Currie, Cass Sunstein, Richard Epstein, Dennis Hutchinson, Geoff Stone, etc., would need an adjunct to teach Con Law (of all courses), let alone for a ten year period. Maybe it's true, but I'd like to see some real evidence.
2.26.2008 11:47pm
theobromophile (www):
Toby,

Thank you. :) Now, if that last comment was sarcasm, all is well in the world. It could have been rounding, too. In the alternative, you could have meant "133% of the Court."
2.26.2008 11:54pm
JSA (www):
Re: Obama teaching constutional law for ten years.
I think that statement is accurate even if he didn't teach Con Law lecture for 1Ls, but taught courses in topics in constituional law.
I think that's what Obama actually did: see link from statement on vote against Roberts, where he says he "for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law."
2.27.2008 12:43am
Michael J.Z. Mannheimer (mail):
"[P]art of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout."

Uhm, isn't he just re-stating the thesis of Democracy and Distrust, the most important work on judicial review written in the past 40 years (and perhaps ever)?
2.27.2008 1:20am
donaldk2 (mail):
What he is saying is, that he would appoint people like Cornellian. Good enough reason to oppose him.
2.27.2008 4:22am
Arkady:

Orin -- do you know what specific course Obama actually taught? Again, I have my doubts that a law school with David Currie, Cass Sunstein, Richard Epstein, Dennis Hutchinson, Geoff Stone, etc., would need an adjunct to teach Con Law (of all courses), let alone for a ten year period. Maybe it's true, but I'd like to see some real evidence.


Dear Mr. Benson,

There's this new-fangled thing called "Google" that you might investigate...
2.27.2008 7:43am
spider:
I find odd the notion that attending three years of law school qualifies you to interpret ERISA or RFRA or AEDPA.

I got pretty good grades at Harvard Law and I don't know jack about the above. I don't even know what AEDPA stands for without checking wikipedia!

I don't think the skill of using logic and care to read a text and figure out its meaning is something that can be imparted through formal training. It's just something you develop through practice. A non-lawyer can develop that just as well as someone who sat through 6 semesters of law classes.
2.27.2008 8:13am
Jackson Benson (mail) (www):
Arkady -- well, then, it shouldn't be so hard for you to find a link to a real source of evidence . . . .
2.27.2008 8:28am
wuzzagrunt (mail):
Obama is a minority-communtiy-activist turned Democrat-political-hack (albeit an impressively talented one), from Daleytown USA. If there are any lingering doubts about what his statements "really" mean, I will translate. Obama's ideal SCOTUS justice will: "Comfort the afflicted, and afflict the comfortable". He would NOT be where he is today if he believed otherwise. Get real people.
2.27.2008 8:45am
Anderson (mail):
Would someone also find Mr. Benson a link that explains what a "liberal" is? He seems confused about that, too, and I don't think it's fair to expect him to find out things for himself.
2.27.2008 9:37am
Cornellian (mail):
What he is saying is, that he would appoint people like Cornellian. Good enough reason to oppose him.

I doubt I'd qualify as having the necessary empathy, and I thought Roberts was a good appointment, so I don't think I'm on Obama's short list of nominees. But nor do I think he's way out there for saying he'd like his judicial nominees to have empathy.
2.27.2008 10:48am
Dixie Yid (mail) (www):
I was upset by what the Barack Obama said about what criteria he would use in appointing supreme court justices, were he to become president.

Here's one comment, among several, that you quoted: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

This seems to imply that a supreme court justice (who is charged with deciding the law on a given matter, and not issues of fact), should not judge based only on the law, but should have a broader role, that of affecting social change for the victims and the helpless of the world. Now that sounds very beautiful, but this former constitutional law professor is forgetting that there is a separation of powers in this country! Judges, at least in the supreme court, are judging issues of law. They are merely there to decide the meaning of statutes and the Constitution, not as agents of societal change.

The Bible speaks about this when it commands judges, in Leviticus 19:15, "--לֹא-תִשָּׂא פְנֵי-דָל, וְלֹא תֶהְדַּר פְּנֵי גָדוֹל: בְּצֶדֶק, תִּשְׁפֹּט עֲמִיתֶךָ," "Do not favor the the poor man, nor should you honor the rich man. With truth shall you judge your people." The Sifra on Leviticus 4:2, Parshas Kedoshim, clarifies, "שלא תאמר עני הוא זה, הואיל ואני והעשיר הזה חייבים לפרנסו - אזכנו ונמצא מתפרנס בנקיות; לכך נאמר: 'לא תשא פני דל." "Lest [the judge] say, 'Since this man is poor. And this rich man [the other litigant] is obligated to support the poor, I will cause him [the poor man] to win, and he will be supported honorably.' Therefore, the Torah says 'Do not favor the poor.'"

Being a judge is not easy. Sometimes the law simply does not come out on the side of the party who you or I would like to see win, because of their unfortunate situation. But the Torah says that the solution is not to pervert justice to get the desired outcome. Similarly, l'havdil, in secular law, we would be in a very bad place if judges and justices did as Barack Obama here seems to imply they should do, i.e. let their sympathies determine the outcomes of their judgments, rather than the law.

Hashem gave us the mitzva of tzedaka to give us merit by doing this mitzva. There is no need to obviate the need for this zechus/merit by perverting justice to support the poor and the oppressed through the judicial system. There are many things outside of the judicial sphere that we can and should do to help those that need it.

-Dixie Yid
2.27.2008 10:49am
Verify:
This is a Cass Sunstein blog post which states that "he's [Obama's] a terrific teacher, and we tried to convince him to join the faculty full time on several occasions." Hopefully, Prof. Sunstein's claim that Barack Obama was a lecturer at Chicago will assuage your concerns.
2.27.2008 11:16am
BK (mail):
Terrence Jeffrey just published a column about Obama and his problematic view on supreme court justices, particularly Roberts and Alito. It is worth a check. The link is Here.
2.27.2008 2:39pm
JosephSlater (mail):
Gosh, I would see Obama's nomination of Cornellian or people like him as a plus.
2.27.2008 3:27pm
Cornellian (mail):
Gosh, I would see Obama's nomination of Cornellian or people like him as a plus.

[blush]
2.27.2008 4:15pm
Brett:
I guess that means that once a Democrat is in the White House the Republicans will have forgotten about their prior insistence that a judicial filibuster is unconstitutional and that every nominee is entitled to an up or down vote.


Nah. It just means that they'll have finally been persuaded by Democrats' words and actions that judicial filibusters are legitimate. It's bipartisanship, see?
2.28.2008 3:11pm
Brett:
Gosh, I would see Obama's nomination of Cornellian or people like him as a plus.


Please don't ever breed.
2.28.2008 3:12pm
Big Bill (mail):
LM: "If that's your opinion of liberals, why would you even want to live in a country where as of now liberals are preferred over conservatives?"

Upon deconstruction, what a curious question. I don't think anyone "wants" to live in such a country, do you? Don't you really mean "why don't you leave America if you are so unhappy?"

And the answer to that question is "because America is my homeland, and Americans my people. Why would I want to live in galut?"
3.1.2008 10:18am