More on Who Barack Obama Might Appoint to the Supreme Court:
From the March 3 New York Times:
Mr. Obama addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California and the former chief justice, as an exemplar.Ed Whelan has more on Obama and judicial appointments in the Weekly Standard.
Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks.
“I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through,” Mr. Obama said.
Obama's a commie!!! Don't vote for him!!
Why does Ed Whelan hate freedom? Only a statist who believes that government controls all and doles out rights to the people would hold that view. Some other observations:
Leslie Southwick was a consensus pick as long as you left blacks, gays, and People for the American Way out of your stakeholders. Wikipedia describes him as "controversial."
Having another Supreme Court judge who grew up poor, or who practiced social justice law, would not be a bad idea. Diversity of experiences allows more sides to be represented in each decision.
After reading the 50's Senate volume of Caro's biography of LBJ, I can hardly believe that any recent filibuster was "unprecedented".
Why does Ed Whelan hate freedom? Only a statist who believes that government controls all and doles out rights to the people would hold that view.
What an odd leap of logic.
I thought it was parody?!
Wikipedia: the source of all knowledge.
I might add that Whelan is not totally off base; if all that was necessary to be a judge was compassion and empathy, the LSAT would include scratch-n-sniff questions, law school texts would include pictures, and Oprah would be a shoe-in for the next SCOTUS nomination.
I guess you're untainted by any past familiarity with Tony's posts...
Obviously, that's not the role of the courts, that's the role of the President, pursuant to his commander in chief power, that's just positively overflowing with penumbras these days. Heck, it even overrules other provisions of the Constitution.
Good for him. I want people who follow the law.
This post motivated me to make another donation to Obama.
Assuming he speaks metaphorically, “leaven” means to “lighten the load of.” Thus he wants to lighten the load of legal scholarship by political experience. This means he wants a justice to explicitly introduce politics in to his jurisprudence. Now I know judges do this all the time, especially at the Supreme Court level, but BHO seems to go further and make the “correct” politics a qualification. As such I think we should then elect SCOTUS. After all they serve for life because they are supposed to be non-political.
Not sure if you are aware of this, but the Supreme Court makes law through its interpretation of Constitution.
"Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "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." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible."
The facts are plainly stated and verifiable and the opinions expressed are duly measured against those facts. Another excerpt:
"Obama finds himself compelled "to side with Justice Breyer's view of the Constitution--that it is not a static but rather a living document, and must be read in the context of an ever-changing world." But no one disputes that the Constitution "must be read," and applied, "in the context of an ever-changing world." The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution's meaning willy-nilly--in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a "living" Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, "the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.""
Whelan's piece is soundly based, thoughtful and penetrating. What is weak and poorly founded is Obama's contrived, Constitution-du-jour reasoning.
He must be one of the resident liberal trolls, I don't keep track of their names.
Your quoting of broad passages from Wheelan's article doesn't make it less shrill or less poorly reasoned. It's nothing but a right-wing screed against Obama.
Is Ed Whelan stupid?
I will give you a clearer prescription for lawless judicial activism. Deciding easy cases (i.e. where the law is clear) rather than "truly difficult cases" on the basis of one's values in a way that contradicts the law.
Wham! The not so bright Ed Whelan is knocked out. That was easy.
I will further assert that Whelan is not so bright based on his ability to comprehend that some "truly difficult" cases simply are not capable of objective resolution. It doesn't take a genius to realize that when you have law that is on point on both sides and no objective formula for giving more weight to the law on one side versus the other, that making a final decision in these "truly difficult" cases is going to involve a value judgment.
That is pretty clearly what Obama is talking about. Is Ed Whelan so stupid that he thinks his hero Scalia never makes value judgments when coming to a decision?
Doesn't follow at all.
Actually, he didn't say that at all. That is the Times' characterization.
You shouldn't rain on someone's parade! It is fun to willfully misinterpret... =)
I'm not a lawyer, and I can see that is hooey. Cases in which it is unambiguous to "follow the law" don't get to the Supreme Court.
When Obama suggests that a view of practical experience is valuable, he might be thinking, for example, about how subtle and nuanced an ordinary citizen can be expected to be about his constitutional rights when stopped by a cop in a strange town in the middle of the night for no known reason.
Do you mean to tell me that the U.S., of all places, is not founded on the principle of absolute executive power? I just took it as a given that the executive, as "commander in chief" of both the armed forces and apparently every American citizen, could pretty much legislate, interpret the laws and the constitution and enforce them at his leisure. I mean, that was what the American revolution was about, right? Gee, why aren't Chavez and Bush pals?
Of course it is, and that's obvious to anyone who gets their constitutional interpretation from episodes of "24."
What is more problematic is when judges are interpreting/crafting rules based on their own experience and applying it to the rest of us, when their own experience is so limited. I think most people on this blog are familiar with J. Holmes' well-known mistake with train crossings- creating a per se rule to stop and look because, well, that's what Holmes would do.
Extrapolate that to our current justices. It is easy, for instance, to be protective of police techniques in certain areas if you don't have much experience with the police (or, at least, the other side of the police). It is understandable that the justices might have different perceptions of what constitutes 'reasonable' given their (often) rarified background. Is it any wonder that their economic and corporate decisions lack both the polish of a true corporate background and the understanding of power disparities of someone who has fought corporate power?
I think a diversity of legal opinions and backgrounds is a good thing. I think having a few justices with political (not just ideological) and pragmatic backgrounds is a good thing.
Oh. I must have missed that.
As for extraordinary people, they deserve to lose even when they are in the right because the judge feels sorry for their ordinary opponents.
"I want a judicial conservative" or "originalist" simply translates to, "someone who is tough on crime, supports school prayer and big business, doesn't think gays have rights, and who doesn't think abortion is a constitutional right."
I realize Orin Kerr is sincere, but I don't believe may others are. Most conservatives do not want a Justice Harlan. They want a Justice Scalia or Rehnquist. They want a Supreme Court justice who will mostly vote in favor of politically conservative results.
For proof, see Ted Cruz's tribute piece praising Rehnquist's gamesmanship. And note that Scalia is still a fan favorite, despite his unwillingness to truly vote for originalist results.
It's bad enough that presidents are expected to "feel your pain," but Sen. Obama wants to extend such populist claptrap to the selection of judges. Pure demagoguery.
He's also a fan favorite despite voting the "wrong" way on recent habeas cases. I think people can tell the difference between somebody who has principles but sometimes compromises them and somebody who simply has no principles.
If your theory of constitutional law is "whatever I feel the law should be" then nobody will ever be able to call you a hypocrite. On the other hand, there are worse criticisms of a judge than hypocrisy.
I don't doubt that many of the politically conservative types who want a justice in the mold of Scalia/Thomas feel that way because they want the results that those justices' methods produce.
But they're not the only people who want Scalia/Thomas type justices. If one believes that originalism constrains personal preferences (John Harrison of UVA gave an interesting talk in which he argued rather convincingly that it doesn't), then regardless of one's political preferences, one should prefer a Scalia/Thomas type to Earl Warren. Brown v. Board was a good decision, but it's hardly the only decision that the Warren court made.
A return to the lawless Warren Court is a truly frightening prospect, especially coming from the person who's most likely to get the Democratic nomination and who appears to be the odds-on favorite to be the next president.
If people want more "politically liberal" stuff from the government, there are 2 other branches besides the judiciary, and several other levels of government besides the federal government.
What is it that you fear?
I'm willing to bet you fear the results of cases. Which just proves my earlier point.
Maybe 1% of people actually care about judicial methodology. The rest care about one thing - results.
It'd be nice if more people would just say as much.
"I only cheat on my wife when someone really hot approaches me, and when I'm in Vegas."
Would anyone call that person a "man of principle"?
Scalia supports orignialism, except when it means people might smoke marijuana. Not really seeing how that goes towards your "man of principle" argument.
In fact, many would say you prove that you have principles when your principles are tested. It's easy to "follow your principles" when the temptation and cost of doing so are small.
Only when a judges make good law based on bad facts do we really learn if that judge is a person of principle.
What you've outlined there is a bad principle. Can you see the difference between these two scenarios?
(1) "I recognize that cheating on my wife is wrong, but I've done so on several occasions when confronted with the temptation"
(2) "I don't think marriage is really a 'binding agreement', so I feel free to sleep with anybody who makes themselves available."
Again, Scalia's "fan favorite" status comes from his embrace of a judicial philosophy that, at least at times, constrains him from ruling in accordance with his personal preferences. It's not that people think he's perfect, but at least he's trying to live up to a standard.
I personally prefer that to somebody who openly and honestly (and consistently!) rules that the constitution means whatever he thinks it means.
Do you think that the recent War on Terror habeas cases were important?
Anyone who thinks Scalia is an originalist hasn't read many of his decisions.
Thomas is an originalist. The two justices are not equivalent at all.
Anyone who thinks that he's not either disagrees with him on the compatibility of orginalism and stare decisis or has only read a few of his decisions.
Scalia and Thomas are certainly not "equivalent," but for the purpose of comparing them to Earl Warren, it's not erroneous to suggest that the former 2 have a great deal in common.
"Mike" writes: I'm willing to bet you fear the results of cases. Which just proves my earlier point.
No, I don't, which apparently disproves your earlier point.
How hard was he trying when, in Lujan v Defenders of Wildlife he claimed that the President's obligation to take care that the laws be faithfully executed was really a presidential power that restrained Congress, an interpretation which Scalia was the first to notice in 200 years and which he didn't bother to support by citing any prior court decisions or any evidence that this was the original understanding of the clause?
How many people commenting here have spent a lot of time looking at state codes and administrative regulations passed pursuant to an enabling statute? Many if not most, I would venture. Whenever I come across a legal issue in the vehicle code, I dread the confrontation with the (seasoned but equally confused) DA that is sure to follow. The ambiguity, apparent contradictions and interrelationships within the code, along with administrative rules, make simple DUI cases potential nightmares. When I worked for the Federal Defenders office as an intern it was even worse, in light of the Assimilative Crimes Act.
You cannot always divine legislative intent based on language and history. While I understand how attractive this judicial "philosophy" is to many, beware of comprehensive ideologies. There's a reason Marxists see the revolution coming around the corner when they look at, well, anything. And it is not because we are two steps away from class warfare.
It doesn't take a genius to realize that when you have law that is on point on both sides and no objective formula for giving more weight to the law on one side versus the other, that making a final decision in these "truly difficult" cases is going to involve a value judgment.
If there is no issue of law to decide, just difficult questions then why is the case at the Supreme Court or even the Court of Appeals? The original lower court verdict, absent an abuse of discretion, or a circuit split should just be upheld and cert denied.
It surely isn't your view (Oh God, it probably is), that just because a justice thought the losing side was more deserving of sympathy that they should hear the case absent any legal principle that needs the attention of the court.
If the Supreme Court consists entirely of people with similar backgrounds and similar philosophies, the quality of the decisions issued by the Court will decline. That is true whether the Court consists of clones of Scalia and Thomas or of clones of Brennan and Marshall. In addition, the Court will lose legitimacy and respect in the eyes of those whose views are not represented on the Court.
As was cogently noted above, the Supremes get the hard ones, the ones where reasonable people disagree. I want a Supreme Court with Justices from different backgrounds, both liberals and conservatives, and some middle of the roaders as well. Ideas from all parts of the political spectrum will be discussed, and hopefully listened to by all Justices. The end product is likely to be better that it would be where most or all Justices share the same experience and judicial philosophy. Furthermore, with a diverse Court, a unanimous opinion will generate more respect. And there will be times where having a unanimous opinion from a diverse Court will be important (e.g., the Nixon Tapes case).
So when I hear McCain say that he wants to appoint Scalia and Thomas clones to the Supremes, I shudder. I also wonder if Obama would still heartily endorse Supreme Court justices "ruling from the heart" after reading the majority opinion in Bush v. Gore.
Why not?
People threw a fit over the takings case (Kelo v. City of New London). How many of those people READ the opinion? All most anyone knew (or cared to know) what that the Supreme Court held that the government could take their home for pretty much any reason.
I think 95% or more of Kelo's critics would have been happy if the justices had found it in their hearts to hold that the government can't take a person's home for pretty much any reason.
To whom? I could just copy-and-paste my second paragraph here.
Do you really think, when talking to 95% of Kelo's critics, that they would feel better knowing that logic and precedent supported the opinion; and that as a practical matter, the odds that their home would be taken is trivial; and that the consequence of Kelo is that blighted areas might be given a second life?
Again, I just don't see that.
I imagine a bunch of people here think that judicial process is important to most people. It's not. Just ask around.
The legislative process isn't that important to most people, either. People just want the laws passed that they agree with. Do most even care about log rolling, ostracism, vote trading, etc? As an abstract matter, nope.
People only care about process - legislative or judicial - when it leads to their ox being gored.
Neither man would be called principled, or one who is committed to fidelity. Both would (properly) be called cheats or adulterers.
How do you know this? Because he says so? "I'm an originalist and vote against outcomes I personally want." "Cool, that's the end of the discussion. You said it's true. QED, it's true."
Really... Who thinks like this?
A person can say whatever he wants about himself. I could say, "I pay my bills on time. Loan me some money." You'd want to pull my credit report to see if this is true.
Scalia's credit report is contained in the U.S. Reports.
Scalia says a lot of things. Again, so what? I don't care what people say I about themselves. I am perfectly capable of examining available evidence and reaching my own conclusions.
I've examined the evidence and concluded that Scalia is no originalist.
Of course, my mind is not closed. You're welcome to show how Gonzles v. Raich reached an originalist result. I'd be especially interested in knowing why Scalia ignored rather than (on originalist results) refuted Justice Thomas's dissent.
Bingo. You can't square originalism AND stare decisis, once any substantial amount of precedent contrary to originalism has accumulated. You've got to chose between the two, and Scalia has made it clear he choses stare decisis. He's an originalist only in cases of first impression, and that's a pretty weak form of originalism.
Why should we, when it's bad precedent? Yes, the Supreme court issued a ruling which was the culmination of a decades long erosion of property rights. We're supposed to cheer that, given a chance to correct a long series of mistakes, they decided to engrave them in stone instead?
no, it doesn't judicial conservative means somebody who rules on the law/constitution, even when it means the RESULTS will be bad.
for example, i WISH the constitution prohibited much of the war on drugs. but it doesn't. thus, most pro-drug-war decisions are not what i WANT. they are what the constitution requires.
scalia "lost me" when he made that absurd decision about the commerce clause and medical marijuana. that's as judicially activist decision (arguably) as that some sort of "penumbra" means that abortion is a constitutionally protected right.
I'd be interested to hear how Scalia reached the conclusion that growing a plant in your own back yard for your own personal use fell within federal jurisdiction under the interstate commerce clause and managed to do so without even bothering to mention original intent. If Scalia were really an originalist he would have agreed with Thomas.
heck. how many have roe v. wade. there is arguably no more controversial and divisive opinion around. people who routinely spout about a womans "right to choose" and are 100% convinced it was the RIGHT decision, have almost never read it.
like most rulings, people concentrate on the results, not the process.
i bet you could go to yer average NARAL meeting (i sat through a couple) and despite the fact that these people live, breath, eat, and sleep roe v. wade, almost none have read it.
bingo. exactly what i mentioned in the previous post that clearly puts a lie to the idea that scalia is an originalist, or at least a consistent one.
that is arguably one of the most garbled and ridiculous decisions i've ever read.
Do you think those people who were upset with the result in Kelo will be happier knowing that the Supreme Court might rule differently in another condemnation case for reasons unrelated to precedent and logic, i.e., that the Supremes might rule differently merely because the party whose property was being condemned a) was a known active member of a political party to which a majority of the Justices belonged, b) was good looking, c) ran a restaurant that served good Italian food? That's what can happen when you start abandoning logic and precedent.
I acknowledge that there are many, many people out there who want to have it "their way" without regard to the cost or consequences to others. That is one of the major disappointments of living in 21st century USA. But I do not agree with you that people will not care about the judicial process once they are forced to endure over a period of time a judicial system that decides cases based on emotions and desires.
Blacks are 13% of the population. The alternatively gendered are 2% of the population. Add those together you get 15% of the population. Add in PAWers and you get 15% of the population. Your statement implies that 85% isn't a consensus. But it's pretty close.
Lopez? Morrison?
Though I think the Commerce Clause should be narrowed, there exists a very strong argument that a judicial conservative NEVER would have decided Lopez and Morrison the way Scalia did. More precedent than I can remember went against those cases. Yet he had no problem voting the way he did.
Maybe he - coincidentally - voted the way he did in Raich because he saw the error of his ways. Federal powers law had existed in a strong for for over five decades. Better to leave it undisturbed.
People change their minds. Maybe Scalia changed his. Though, several years after Raich was decided, the outspoken Scalia has never indicated that a change of mind is what moved him to vote the way he did.
Scalia had made it clear that he chooses whatever he wants whenever he wants.
Please cite one case from the Warren Court era where one of those factors lead the Court to reach the decision it reached. Because if it's the Warren Court's "lawlessness" and departure from "logic and precedent," that you fear, then surely there must be some case where a), b), or c) happened.
Otherwise your example would be silly and also be in bad faith. And we are to presume these discussions are occurring in good faith, yes?
Warren support the Japanese internment while he was
California Attorney General?
Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks.
Perhaps Earl Warren learned something from the results of interment; that all races are equally American.
One can only wish.
Does the Supreme Court have a shortage of former corporate lawyers and Wal-Mart directors?
Obviously the pro-internment Warren Eisenhower thought he was appointing evolved considerably into the Chief Justice who gave Ike so much buyer's remorse.
You're suggesting your comment is soundly reasoned?
The two excerpts provided, certainly so the second of the two, reflect the most penetrating aspects of Whelan's commentary imho, a solid piece throughout and not in the least shrill.
This is a late post, and you might not see it, but I have been otherwise occupied and not able to post.
What in the world makes you think I am "afraid" of the Warren Court? My politics are more in agreement with the Warren Court that with the Roberts Court.
But regardless of politics, as a Justice (or as any judge), you should not be ruling strictly "from the heart." To avoid judicial chaos, there needs to be a basis for the ruling that is grounded in logic, precedent, and the practical results associated with the result you reach. Of course you get to overrule precedent if you are a Supreme Court justice, and there are times when overruling precedent may be the proper result. But we should not have the case law changing back and forth based on the political whims of judges.
Would you agree with me that the result in Bush v. Gore was strictly driven by the political affiliations/whims of the Justices in the majority, notwithstanding what is in the opinion, i.e., that the majority opinion was "from the heart" and not logically defensible? I certainly am of that view. And if you are going to decide a case a certain way because you agree with the politics of the party in whose favor you are ruling, you might as well rule in favor of someone because they are good looking or because the own a restaurant that serves good Italian food. Dressing up your opinion with twisted logic, like the twisted logic of the majority in Bush v. Gore, does not change the fact that you are leading the country incrementally towards complete chaos.
Do you really want any judges or justices consistently deciding cases in the manner in which Bush v. Gore was decided, even if they are ruling in a way that is agreeable with your politics? I sure don't want that to happen.