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Obama Campaign Responds to McCain Speech on Judges:
In his post below, Paul wonders how Senator Obama will respond to Senator McCain's address on judges. The Obama campaign put out the following statement this afternoon:
The Straight Talk Express took another sharp right turn today as John McCain promised his conservative base four more years of out-of-touch judges that would threaten a woman's right to choose, gut the campaign finance reform that bears his own name, and trample the rights and interests of the American people. Barack Obama has always believed that our courts should stand up for social and economic justice, and what's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.
alias:
another sharp right turn? if sharp means greater than 90 degrees, then 2 sharp right turns are the equivalent of 1 sharp left turn.
5.6.2008 7:22pm
DangerMouse:
Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

This is un-frigging believable. I guess it's too much to ask that the courts should stand for blind justice anymore. Now courts have to have an agenda too, just like the politicians.

The man has all but reiterated the point I've been making in the thread below: he wants liberal justices with their thumb on the scales.

How can ANYONE possibly defend this? Are there no liberals anymore who think the Courts should be fair?

If the Democrats keep moving in this direction, the Courts are bound to become hopelessly politicized, even down to the trial court level. That is a situation waiting for disaster. I don't think I want to imagine what an America would look like where a man can't get a fair hearing in court if he's up against a woman, or if an individual can't get a fair hearing when he's fighting against the government's seizure of his property.

This is a nightmare scenario.
5.6.2008 7:26pm
Blue (mail):
Hm. I'll take "Courts stand up for law" rather than social or (particularly) economic justice!
5.6.2008 7:30pm
KeithK (mail):
DM, it's entirely believable and not surprising. For many on the left, the courts are only being "fair' when they are pursuing "social justice". A result that favors a big corporation at the expense of a poor individual is wrong even if it is consistent with the law because the result doesn't fit with what seems "right" from a moral or emotional perspective.

It's really a totally different mindset and world view.
5.6.2008 7:33pm
ewannama (mail):
I'm not sure whether the last sentence is arguing for or against two separate sets of law depending on who appears before court.
5.6.2008 7:34pm
DangerMouse:
I'm not sure whether the last sentence is arguing for or against two separate sets of law depending on who appears before court.

Not two sets of law, just one set of law. It used to be called "heads I win, tails you lose." Now it's called liberal jurisprudence.
5.6.2008 7:37pm
Asher (mail):
Terribly disappointing. To counter this just a little, the NY Times did a piece on Obama's brief time in the Senate a month ago where they said that Obama actually wanted to vote for Roberts, but that aides warned him that, if Roberts made an unpopular vote on a case (unpopular among Democrats, that is), it could be used against Obama in the primary. Of course, that doesn't reflect on who he'd nominate himself, but at least it shows that he's somewhat fair-minded - though it also shows he's not very principled.
5.6.2008 7:40pm
DangerMouse:
There are obviously a lot of Obama supporters on this blog. To you I ask this question: how can you defend this statement? How can anyone be in favor of a judicial system that favors certain people over others? Why should a court be against a property owner when the government is trying to take his property? Why should the court be against a man in a dispute with as woman? Why should the court look favorably on a minority over a non-minority?

I've never seen a more explicit case made by a liberal that this should be a government of men and not of law, and that justice should favor one person over another. It's just outrageous.
5.6.2008 7:45pm
John Thacker (mail):
Of course, that doesn't reflect on who he'd nominate himself, but at least it shows that he's somewhat fair-minded - though it also shows he's not very principled.

Well, it shows that he has people who want to tell the New York Times that he's somewhat fair-minded at least. There's a lot of people who believe quite different things who all seem to think that Sen. Obama "really" agrees with them but is just saying something else in order to get the nomination/win the election/whatever. After all, he's so smart and charismatic that he simply must agree with me on judges/ethanol/free trade/social justice.
5.6.2008 7:52pm
frankcross (mail):
DangerMouse, the defense is easy. Having gone to HLS, I doubt Obama is arguing for "the poor always win." I suspect his argument is that in cases in which the law is indeterminate and unclear, as a fair number of Supreme Court cases are, that the justices might favor the disadvantaged party.

Although I suspect the true answer is that it's mostly pandering to the electorate
5.6.2008 7:56pm
swg:
Danger Mouse: Rawls - and maybe Obama - would probably say that since the Constitution was not drafted behind a veil of ignorance, its provisions probably don't adequately protect certain groups. Clearly the circumstances around 1800 disfavored blacks, women, and other "discrete and insular" minorities with histories of discrimination. If the groups in power fashioned (deliberately or not) a Constitution that protected their positions, where would disfavored minority groups find protection other than the Court?
5.6.2008 8:01pm
PLR:
How can ANYONE possibly defend this? Are there no liberals anymore who think the Courts should be fair?

I have no interest in a President who would continue to appoint from the same nutball Federalist fringe that GWB has drawn his nominees from.
5.6.2008 8:06pm
Asher (mail):
There's a lot of people who believe quite different things who all seem to think that Sen. Obama "really" agrees with them but is just saying something else in order to get the nomination/win the election/whatever.

Great point. I'd say half of the brighter liberals out there support him because of what they think he'll do, not what he's actually said he'll do.
5.6.2008 8:07pm
DangerMouse:
swg,

Obama doesn't limit himself to minorities with histories of discrimination (and that wouldn't explain why racial quotas would be upheld in places that had no discrimination, or why "diversity" permits racial discrimination against whites). He also talks about social justice and economic justice. That, to me, sounds very close to extra-legal takings in the name of socialism like Hugo Chavez is doing in Venezuela. A justice appointed by Obama in the 40s would've upheld the seizure of the steel mills by the Federal Government. It also sounds like overthrowing laws that upset his moral sensabilities, whatever they may be. What if an Obama-appointed judge has a thing against age-of-consent laws, believing that love automatically means consent? All laws would be unconstitutional under that whacked social justice scenario.
5.6.2008 8:08pm
The General:

Of course, that doesn't reflect on who he'd nominate himself, but at least it shows that he's somewhat fair-minded - though it also shows he's not very principled.


Actions speak louder than words. Obama is a liberal extremist on judges as evidenced by his vote against Roberts, a brilliant, eminently qualified and truly fair-minded jurist.
5.6.2008 8:09pm
DangerMouse:
DangerMouse, the defense is easy. Having gone to HLS, I doubt Obama is arguing for "the poor always win." I suspect his argument is that in cases in which the law is indeterminate and unclear, as a fair number of Supreme Court cases are, that the justices might favor the disadvantaged party.

Frank, I understand you're trying to fit this unreasonable round statement into a square hole, but I don't think it's going to work. I don't believe for a minute that a judge with an attitude of imposing preferences in situations where the law is unclear, would similarly restrain himself from imposing his preferences when the law IS clear. In fact, I'm certain that, if human nature regarding power (especially life-appointed power) is any guide, such a judge would not restrain himself, but would only grow in his corruption.

I just find it amazing that so many are flatly accepting of a judicial system that favors one person over another as soon as they walk into a courtroom.

What is the incentive for a white male to play by the rules in the future, if playing by the rules lands him a biased judge? Doesn't this sort of thing almost guarantee extra-legal problems that the judicial system is supposed to prevent by being fair and impartial? Don't you see you're playing with fire?
5.6.2008 8:13pm
The General:


How can ANYONE possibly defend this? Are there no liberals anymore who think the Courts should be fair?


I have no interest in a President who would continue to appoint from the same nutball Federalist fringe that GWB has drawn his nominees from.


So, in other words, you're not intelligent enough to defend Obama's promise to nominate left-wing judges who will disregard the written law to favor the minority of the month other than by attacking the current president and the non-partisan Federalist Society. You're the nutball.
5.6.2008 8:14pm
BillyBoy982:
I wonder what Kmiec has to say about this?
5.6.2008 8:15pm
Guest517 (mail):
The essence of a liberal judicial philosophy is to acknowledge the process through which laws come into being, rather than simply taking those outcomes at face value. We have judicial review for a reason, despite its seemingly undemocratic bent. Simply put, the political process sometimes gets hijacked in ways that lead to undemocratic outcomes (See John Hart Ely). The point of judicial review isn't to politicize and corrupt the third branch, its to attempt to counter the corruption and undemocratic outcomes of the other two branches. That's why the Voter ID and and redistricting cases are so distressing.
5.6.2008 8:17pm
alias:

The point of judicial review isn't to politicize and corrupt the third branch, its to attempt to counter the corruption and undemocratic outcomes of the other two branches.
So... the point of judicial review is counterpoliticization and countercorruption? Why don't we just have one Congress elected by the voters and another that's appointed solely to be contrarian with respect to Congress?
5.6.2008 8:23pm
Guest517 (mail):
I left out the last link, namely that it's the poor and minorities who tend to be the victims of democratic hijackings. So no, poor people shouldn't always win. But if process is taken into account, disadvantaged groups will on balance do better.
5.6.2008 8:23pm
DangerMouse:
Guest517,

Perhaps you can explain to me how poor white men from Applachia aren't the victims of a democratic hijacking regarding preferences for blacks and women. And why a judge presiding over a case in which said man sues to prohibit such injustices should favor ruling against the Applachian man.

To think that all the monuments to justice that depict the blind weighing of scales were wrong...
5.6.2008 8:29pm
ithaqua (mail):
"what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves."

Typical liberal. Thinks 'fend[ing] for themselves' is a horrible fate, instead of the greatest benefit government can provide :)

And, to be honest, the 'powerful' need legal protection more than 'ordinary Americans' do - in liberalspeak, the 'powerful' are white men (who work for a living) and their families, while 'ordinary Americans' are the motley rabble of lazy welfare bums, criminals, illegal immigrants, greedy AARPers, self-hating ultra-wealthy latte liberals, and the rest of the politics-of-envy crowd that make up the Democrat Party base. Our greatest need is for judges who will protect American workers, entrepreneurs and property owners from the unConstitutional wealth redistribution demanded by the mob; I can protect myself from burglars, but I can't hold off the IRS with a shotgun.
5.6.2008 8:30pm
Oren:
Dangermouse, I tried . . . it didn't seem to take. If you are serious about it, I'll try again (although, to be fair, I was technically a Clinton supporter but I don't honestly care so long as 100-years-in-Iraq-McCain doesn't win).
5.6.2008 8:33pm
Smokey:
Obama had better wake up, and realize that at this point Hillary is the one he has to beat. McCain is way down the road.

Hillary is very focused, and she is not giving up. Obama appears to be a lightweight dreamer for not keeping his eye on the ball. The Convention could change everything. Contrary to popular belief, no delegate can be forced to vote a certain way.
5.6.2008 8:33pm
KeithK (mail):

If the groups in power fashioned (deliberately or not) a Constitution that protected their positions, where would disfavored minority groups find protection other than the Court?


My response would be that if the law doesn't contain protections for these minority groups then they should not find protection in the courts. That sounds harsh and unfair, but if we want the rule of law we can't have courts deciding cases on subjective, moral bases. If minority groups need protection of their interests they need to appeal to the general populace to pass such laws or constitutional amendments as appropriate.
5.6.2008 8:35pm
Oren:
Why don't we just have one Congress elected by the voters and another that's appointed solely to be contrarian with respect to Congress?
Yeah, it's not like the founders ever intended to start any Constitutional stricture by saying "Congress shall make no law . . . "
5.6.2008 8:36pm
Commenterlein (mail):
DangerMouse,

You really sound like a silly caricature of a right-wing nutcase.

Courts have to weigh the costs and benefits of their decisions all the time, and in many if not most cases the costs and benefits fall onto different people or different groups of people with very different social backgrounds. Such interpersonal comparison of costs and benefits are unavoidable even when trying to faithfully executive the law, and will inevitably be influenced by the judges' ideology and sense of social justice.
5.6.2008 8:38pm
swg:
DangerMouse: I think you're right, that a Rawlsian argument probably won't account for the breadth of the injustice Obama wants the Court to confront. (His statement that the Court should protect "ordinary" Americans is good evidence.) But it is an interesting thought, and I just meant to throw it out there.
5.6.2008 8:41pm
pireader (mail):
DangerMouse wrote - "[H] how can you defend this statement? How can anyone be in favor of a judicial system that favors certain people over others?"

I've read carefully both Senator Obama's statement above, and his explanation for voting against Chief Justice Roberts (quoted in the thread below). I see them saying exactly the opposite--that Senator McCain's nominees (and Roberts) would favor the "powerful" over "ordinary Americans".

That favoritism, he's saying, makes judges "dismissive of efforts to eradicate the remnants of racial discrimination" and "dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man".

I don't see where he's calling for a "thumb on the scales of justice". In fact, he's decrying just such a 'thumb'.

Now you may disagree with him about whether Roberts, or McCain's nominees generally, displays such favoritism; but it's hardly an unreasonable concern. Especially considering the many examples in US history of Supreme Court justices displaying just that kind of favoritism.
5.6.2008 8:42pm
DangerMouse:
You really sound like a silly caricature of a right-wing nutcase.

Yeah, me and anyone else who thought justice should be blind. And all of those artists and masons who created courthouses with the blind goddess of justice weighing the scales, all right wing nutcases. Anyone who doesn't want a judge peeking out from under that blindfold is a right wing nutcase. Judges SHOULD be biased, after all.

Courts have to weigh the costs and benefits of their decisions all the time, and in many if not most cases the costs and benefits fall onto different people or different groups of people with very different social backgrounds. Such interpersonal comparison of costs and benefits are unavoidable even when trying to faithfully executive the law, and will inevitably be influenced by the judges' ideology and sense of social justice.

Fine, if the Court tomorrow said that Abortion was murder and always and everywhere illegal, I'm sure that you'd be safisfied if they said that they came to the decision after weighing the costs and benefits of their decisions and that these costs and benefits fall onto different groups of people all the time with very different social backgrounds. No doubt you'd accept that the decision properly reflected their ideology and sense of social justice, particularly towards the unborn.

Right?
5.6.2008 8:45pm
CDR D (mail):
So what would Obama's judges use as guidance in determining a "fair/desireable" outcome?

Talking heads on TV?

Opinion polls?

Newspaper editorials?

Or would they just stick their fingers in the air, and decide that "everyone intuitively knows (fill in the blank)"?

If so, we may as well not have a Constitution and a body of laws.

JMHO
5.6.2008 8:46pm
Cactus Jack:
Given the hostility that some Volokh commenters have to incorporating concepts such as basic fairness into a system of laws, it's a good thing that the U.S. is a civil law nation and didn't import silly common law concepts such as equity into its legal regime.
5.6.2008 8:48pm
DangerMouse:
I don't see where he's calling for a "thumb on the scales of justice". In fact, he's decrying just such a 'thumb'.

pireader, Obama is against a court that supposedly "protects the powerful." But the powerful and the "powerless" in America are supposed to be equal before the law. If powerful corporation violates a law, it is guilty. If powerless American violates a law, he is also guilty. If powerful corporation harms powerless American, the powerful corporation is liable. If powerless American harms powerful corporation, the powerless American is liable.

There is no difference between the two before the law. Each is an equal, independent actor and the courts are not to look favorably on one or the other based on who they are, only what the law says. Big Powerful Chief Executive White Guy has the same right against discrimination as poor powerless black man. They are both not to be discriminated against.

Obama disagrees with that and explicitly wants the courts to stand up against the "powerful." In the thread below, he framed it as a sympathy towards women against men as an example. Men are "powerful" in this view and the courts should be sympathetic to women.

I don't see how anyone can view this as anything other than a call for an explicltly prejudiced judicial system.
5.6.2008 8:53pm
Oren:
DangerMouse, you seem to be confusing the notion that justice should be impartial, as in not expressing preference, with your broad and egregiously caricatured notion of the word "blind". Also, I think you might be taking the analogy a bit too far -- after all, if justice is truly blind she's likely to slay the innocent with that sword of hers.

At any rate, a perfectly reasonable impartial judge could very well conclude that a history of invidious discrimination merits consideration. When Justice Scalia writes his dissent (thankfully) in Romer, Lawrence, and their ilk, I get the feeling that he writing an opinion for a society where there was no historical animus against gays, women and blacks. He is probably right in that ideal world and I have no doubt that he has absolutely no intention of perpetuating invidious discrimination. Nevertheless, his basic approach seems fundamentally ill-suited to the realities of this world.
5.6.2008 8:54pm
hattio1:
I'll step up to the plate and defend Obama' statement. But first a question, are all you conservatives who are adamant that this means that judges should automatically vote against whites/conservatives/business/police really saying that social and economic justice are never on your side???? Really??? Never???

I would re-think taking that position. Because that's basically all this statement says. We need justices who will consider social and economic justice. I would think a justice in that mold would have considered overturning precedent in Kelo rather than upholding precedent. Are you really against that?

Or, to say it a little shorter, address the substance, not what you want to assume Obama's spokesman means.

Oh, and Alias, you flunk geometry. Two 90 degree right turns would be a 180 degree turn, not a 90 degree left turn.
5.6.2008 8:54pm
Oren:
Big Powerful Chief Executive White Guy has the same right against discrimination as poor powerless black man. They are both not to be discriminated against.
Excepting that, objectively speaking, the discrimination against the former is likely to be less harmful (in the utilitarian sense) because it is unlikely to be repeated whereas in the latter case it is likely to become a recurring injury.

I'm not saying that discrimination against BPCEWG is acceptable (it's clearly not) but you are not comparing apples to apples. If BPCEWG gets thrown out of a 'Blue-Collar-Only' diner, he can just go down the street -- when Montgomery, AL has a majority of diners that are 'Whites-Only', black folks are just SOL.
5.6.2008 8:57pm
Commenterlein (mail):
Well, the decision would reflect their ideology and sense of social justice. That insight is independent of what I personally think the right decision would look like.

The point, which I am happy to explain to you once more, is that even "blind justice" has to make these interpersonal comparisons of costs and benefits, and prattling on about how justice should be blind doesn't help at all in making them.

Not understanding this rather obvious characteristic of the justice system is what makes you sound less than perfectly reasonable.
5.6.2008 8:58pm
Commenterlein (mail):
The above was a reply to DangerMouse.
5.6.2008 9:00pm
hattio1:
keithk says;

My response would be that if the law doesn't contain protections for these minority groups then they should not find protection in the courts. That sounds harsh and unfair, but if we want the rule of law we can't have courts deciding cases on subjective, moral bases.


I have a better idea. Maybe they could amend that law, even the basic Constitution of this fabled land, to include something about equal protection and due process so that a system that previously overlooked certain groups would now treat them equally. Surely all you "follow the law" types would have no problem with that...right? Right? Sorry, I guess I took your rhetoric seriously.
5.6.2008 9:00pm
Oren:
hattio, in order to converse here, you have to forget everything you thought the 14A ever meant. In fact, it's best to forget it altogether.
5.6.2008 9:03pm
DangerMouse:
Commenterlein: "The point, which I am happy to explain to you once more, is that even "blind justice" has to make these interpersonal comparisons of costs and benefits, and prattling on about how justice should be blind doesn't help at all in making them."

....

Oren :I'm not saying that discrimination against BPCEWG is acceptable (it's clearly not) but you are not comparing apples to apples. If BPCEWG gets thrown out of a 'Blue-Collar-Only' diner, he can just go down the street -- when Montgomery, AL has a majority of diners that are 'Whites-Only', black folks are just SOL.


Let me see if I get this straight: Liberal jurisurpdence makes an interpersonal calculation of costs and benefits of discriminating against whites and concludes that because Chief Executive White Guy can go down the street, it's ok to discriminate against him in favor of poor powerless black guy?

This is your system of justice? Really?
5.6.2008 9:07pm
GMUSL '07 Alum (mail):
Hattio1: No. We don't have "group rights in this country", nor do we have "something about equal protection" that applies to any "they". Nor does "equal protection" mean equal outcome or equal result.

Oren/Hattio: That's precisely the source of the outrage. Somehow, I can't see anything that more clearly "den[ies] any person . . . the equal protection of the laws," than to have varying standards, burdens, and presumptions based on the station or identity of the various parties in a particular action.
5.6.2008 9:10pm
Terrivus:
I'm one of those moderate conservatives who saw a lot to like in Obama... but this statement made my jaw drop. I mean, there it is, in bold print: preferring judges who favor certain groups over evenhanded application of the rule of law. I simply can't support someone with that view of the nation's judicial system.

Please, somebody in the die-hard Obama camp, explain to me the following:

1. How is it "out of touch" to vote for someone who garnered 78 votes in the Senate (Roberts)?

2. How is Obama the "uniter" who will cross partisan lines when, on the subject of judicial nominations, he toed the party line on every significant nomination, where as McCain was the one who took a political risk by joining the "Gang of 14"?

3. How is it not political pandering -- of which Obama rightly accuses Clinton on the gas tax issue -- to acknowledge that a nominee is qualified and should be approved (Roberts), but to vote against him anyway because of the future political damage it could cause, as was document in the NY Times article?

I honestly would like to hear answer to these questions. And I certainly hope the Republicans make an issue of this in the general election in a way that all of America understands.

I wonder what Kmiec has to say about this?
Spot on.
5.6.2008 9:13pm
hattio1:
GMUSL '07 Alum says;

Hattio1: No. We don't have "group rights in this country", nor do we have "something about equal protection" that applies to any "they". Nor does "equal protection" mean equal outcome or equal result.


And where, pray tell, did I say we have group rights in this country? I said where there is a system that previously overlooked certain groups, we could treat them equally. You know, allowing Jews, blacks, women to be on juries, allowing blacks and women to vote, counting blacks as a full person instead of 3/5 of a person. Where in there does that say I favor group rights???
5.6.2008 9:24pm
ithaqua (mail):
"But first a question, are all you conservatives who are adamant that this means that judges should automatically vote against whites/conservatives/business/police really saying that social and economic justice are never on your side???? Really??? Never???"

Not at all. I'm saying that the role of a judge is not to establish 'justice' but to enforce the law. Period, end of story. It is the business of the people, in the person of their representatives, to enact just laws; whether the laws are just or unjust is not the province of the judge - and so much less so is 'social justice' or 'economic justice', those nebulous liberal terms that usually boil down to 'steal from the rich!'.

Not that justice is a concern of Hussein Obama. Anatole France once wrote that "the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets and steal a loaf of bread." That equality is one of the hallmarks - indeed, one of the necessities - of any just law; injustice would be rewriting that law (as Obama seems to want) so that the poor would be permitted to pollute society and offend their betters with behavior that would not be tolerated among the upper class. In an earlier day, wealth and social status was seen as a gift from God, and those who possessed it were held to a looser standard under the law; these days, with the Marxist worship of the underclass en vogue, it is poor people, especially poor minorities, who are thought to be above the law (witness the whining about 'racial profiling').
5.6.2008 9:25pm
DangerMouse:
are all you conservatives who are adamant that this means that judges should automatically vote against whites/conservatives/business/police really saying that social and economic justice are never on your side???? Really??? Never???

First of all, "social" and "economic" justice are leftist code words for things like abortion on demand, stealing from the rich, gay marriage, and all other sorts of leftist crap.

If, however, you're referring to true, Natural-law style justice (particularly of the Catholic legal understanding as reflected in the Declaration of Independence), then yes, conservatives are on that side a lot. Your example, Kelo, has more to do with liberalism's logical conclusion of government power over the economy (particularly evidenced in the Wickard v. Filburn case), than it does with natural-law views of justice. A liberal who upheld Wickard would have no problem upholding Kelo.
5.6.2008 9:33pm
pireader (mail):
DangerMouse wrote--Obama is against a court that supposedly "protects the powerful." But the powerful and the "powerless" in America are supposed to be equal before the law.

You've quoted only half of Obama's phrase, in a way that loses his point. He actually said that he's against "judges who will protect the powerful and leave ordinary Americans to fend for themselves". That is, he's against favoring the 'powerful' ... which is very different from calling for judges who favor somebody else [the powerless, women,etc.] His view seems entirely consistent with the idea that all should be equal before the law.


Obama disagrees with that and explicitly wants the courts to stand up against the "powerful." In the thread below, he framed it as a sympathy towards women against men as an example.

Can you show me where Obama has actually said he wants courts that are "against the powerful" or "against men"? Versus saying he wants courts that don't favor the powerful or favor men?
5.6.2008 9:35pm
NickM (mail) (www):
Would anyone who supports Obama care to define "economic justice"?

As long as the courts are supposed to stand up for it, what is it?

Nick
5.6.2008 9:42pm
Kazinski:
Obama's take is the court's function is to implement what he as a legislator can't get through the legislative process.
5.6.2008 9:43pm
sbron:
Does Obama and the Progressive Left realize that Father Charles Coughlin's newsletter in the 30's was titled
"Social Justice"?
5.6.2008 9:47pm
NickM (mail) (www):
pireader - what if the law itself protects the powerful?

The Bankruptcy Act revisions a few years ago gave significant added protection in bankruptcy to credit card providers, who are a lot more powerful than individual debtors. Is an Obama judge supposed to throw that law out because it offends his senses of social or economic justice?

Does it violate some provision of the Constitution?

Nick
5.6.2008 9:47pm
Oren:
Let me see if I get this straight: Liberal jurisurpdence makes an interpersonal calculation of costs and benefits of discriminating against whites and concludes that because Chief Executive White Guy can go down the street, it's ok to discriminate against him in favor of poor powerless black guy?

This is your system of justice? Really?
NO! This is pointless if you aren't going to read my posts. Specifically, I said:
I'm not saying that discrimination against BPCEWG is acceptable (it's clearly not)
. Let me make it extra clear in very bold capital letters:

Discrimination against BPCWEG is UNACCEPTABLE.

Not every unacceptable act has equal WEIGHT because they are not equally HARMFUL. I thought this goes without saying -- even a 5 year old understands the
difference between something that is unfair but minor (he got a bigger slice of cake than I did) and something that is unfair and major (he stole my tricycle and dumped it in the river).

Specifically, throwing BPCWEG out of a diner is less HARMFUL than poor black guy, for reasons already discussed.
5.6.2008 9:48pm
Oren:
what if the law itself protects the powerful?
If the legislature duly passed a law that does not interfere with the liberties guaranteed by the Constitution then it's good law and I expect judges to abide by it (the bankruptcy law is an apt example).
5.6.2008 9:52pm
DeezRightWingNutz:

Big Powerful Chief Executive White Guy has the same right against discrimination as poor powerless black man. They are both not to be discriminated against.

Excepting that, objectively speaking, the discrimination against the former is likely to be less harmful (in the utilitarian sense) because it is unlikely to be repeated whereas in the latter case it is likely to become a recurring injury.

I'm not saying that discrimination against BPCEWG is acceptable (it's clearly not) but you are not comparing apples to apples. If BPCEWG gets thrown out of a 'Blue-Collar-Only' diner, he can just go down the street -- when Montgomery, AL has a majority of diners that are 'Whites-Only', black folks are just SOL.


Is your implication that these cases should be treated differently? If so, how do you reconcile that with this snarky comment:


hattio, in order to converse here, you have to forget everything you thought the 14A ever meant. In fact, it's best to forget it altogether.
5.6.2008 9:54pm
Cody (mail):

gut the campaign finance reform that bears his own name


Wait, what?

Is the Obama campaign trying to get the Republican base fired up for McCain? Campaign finance "reform" is one of the biggest reasons many Republicans (and independents!) dislike McCain, as is the fear that McCain will use support for campaign finance reform as a litmus test for judges.

It's just odd to see the Obama campaign saying something so positive about McCain. :) (Of course, the Obama campaign apparently sees McCain-Feingold as a good thing, which is important to keep in mind...)
5.6.2008 9:57pm
DangerMouse:
That is, he's against favoring the 'powerful' ... which is very different from calling for judges who favor somebody else [the powerless, women,etc.] His view seems entirely consistent with the idea that all should be equal before the law.

pireader, what do you think "social and economic justice" is? It is an explicit call for protecting the powerless, women, etc. By saying he wants judges who should STAND UP for "social and economic justice," he is explicitly saying that the poor, women, minorities, should all be favored by the judicial system at the expense of the powerful.

Now, let me ask you something: do you hear Republicans saying that the courts should protect the powerful? Do you hear Republicans saying that a judge should be sympathetic to majorities, towards men, whites, and the rich? Of course not. You do hear them calling for fairness, impartiality, blind justice, and the rule of law not of men.

But Obama calls for social and economic justice for "ordinary Americans." Of course he's going to frame it as the "interest of the American people." But it's not ALL of the American people, only HIS special people that he wants to protect, the "ordinary" Americans as opposed to the "powerful."

And "social and economic justice" carries with it the entire baggage of liberal garbage: "whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce..." From his Roberts speech, all of it is the same old liberal crap, only this time he's saying that the courts should explicitly STAND UP for those things.

Can you show me where Obama has actually said he wants courts that are "against the powerful" or "against men"? Versus saying he wants courts that don't favor the powerful or favor men?

You don't have to say you're "against men" if you're in favor of women. You don't have to say you're "against the powerful" if you're in favor of the weak.

In dismissing Roberts, Obama said that Roberts "has far more often used his formidable skills on behalf of the strong in opposition to the weak... he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man."

So Obama thinks a Justice should work on behalf of the weak, and be sympathetic to women. Sounds to me that if you're prejudiced in favor of women and the weak, you'd naturally be against men and against the powerful.

And why are those sympathies relevant in a legal decision? Either White Executive Man was discriminated against or not. Obama seems to think that these sympathies in favor of the weak and of women are extremely relevant, because he was one of a few to vote against Roberts.
5.6.2008 9:58pm
therut:
Obama as President may get a revolution that he does not like. This revolution will be televised. Start raping the innocent in the name of social and economic justice and this country may revolt. Or atlas may shrug.
5.6.2008 10:03pm
Perseus (mail):
Would anyone who supports Obama care to define "economic justice"?

Somehow, I suspect that Senator Obama does not define it as Madison did, namely, protecting private property and upholding private contracts against the majority, since Senator Obama does not seem to regard the rich and powerful as a minority worthy of the consideration that Framers afforded them in the U.S. Constitution.
5.6.2008 10:03pm
DangerMouse:
Discrimination against BPCWEG is UNACCEPTABLE.

You do realize that Obama favors affirmative action, in the traditional liberal sense of quotas, right?

Not every unacceptable act has equal WEIGHT because they are not equally HARMFUL. Specifically, throwing BPCWEG out of a diner is less HARMFUL than poor black guy, for reasons already discussed.

Either the government discriminates against the Executive, or it does not. Which way do you rule? Obama says the government can discriminate against him in favor of the poor black guy. From what I hear you saying, you don't want that to happen but you don't seem to mind if it does because it's less harmful.
5.6.2008 10:05pm
Paul Barnes (mail):
Hey, Obama does not have any intention on protecting the weak and powerless, since he is a rabid supporter of abortion and infanticide rights. I do not know of anything more helpless than a child.
5.6.2008 10:31pm
Fearless:
It is funny how those who are against Obama are forced to resort to crude distortions of his positions.

Why oh why are conservatives and libertarians such intellectual weaklings?

Conservatives hate puppies. That is why I am against conservatism.
5.6.2008 10:41pm
Smokey:
I don't think the Teamsters Union is "weak and powerless." But Obama has just cut a back room deal with that union in return for its endorsement.
5.6.2008 10:50pm
Gaius Marius:
Barack Hussein Mohamad Obama is starting to sound like a Shia Mullah more and more everyday.
5.6.2008 11:10pm
Almijisti:

You do realize that Obama favors affirmative action, in the traditional liberal sense of quotas, right?


Unfortunately, quotas are the law, thanks to Bakke v. Board of Regents--one of the ten most severely wrong decisions in the S.Ct.'s history, imo. The problem with BHO and fellow travelers, is that they probably actually believe in this nonsense, yet all they're really doing is pushing the country further and further into a totalitarian state.

Nothing frightens me more than politicians who declare war on legal objectivity in favor of subjective deference to the oppressed. It is the old lie once of the demagogue' BHO is simply the most dangerous person to ever seek the presidency in American history and the closest this country has ever come to nominating a fascist in the true sense of the word. He is truly terrifying.

BTW, whoever mentioned the concept of equity above--equity, by definition, is only relevant where there is no legal remedy available (e.g., laches, estoppel, etc.). The notion that fairness should ever sway a judge or jury to decide something contrary to the letter of an existing law is specious.
5.6.2008 11:11pm
The Cabbage (mail):
I would appreciate being left to fend for myself.
5.6.2008 11:20pm
pireader (mail):
DangerMouse -- Thanks for your thoughtful and courteous reply. Sorry I've been delayed in responding.

You wrote -- By saying he wants judges who should STAND UP for "social and economic justice," he is explicitly saying that the poor, women, minorities, should all be favored by the judicial system at the expense of the powerful.

Frankly,this argument is pretty weak. I asked for evidence that Obama has actually called for the courts to favor some groups over others. You reply that he calls them to favor "economic and social justice" ... which sounds pretty harmless. Then you read that to mean favoritism--a reading that's less than obvious--and then foist your reading onto Obama. How on earth does calling for economic and social justice "explicitly" call for favoritism in the courts?

Obama calls for social and economic justice for "ordinary Americans." Of course he's going to frame it as the "interest of the American people." But it's not ALL of the American people, only HIS special people that he wants to protect, the "ordinary" Americans as opposed to the "powerful."

Also kinda weak. Now you're arguing that what he said sounds OK, but he doesn't really mean it. Maybe so, but don't you need to offer some evidence?

do you hear Republicans saying that the courts should protect the powerful? Do you hear Republicans saying that a judge should be sympathetic to majorities, towards men, whites, and the rich? Of course not. You do hear them calling for fairness, impartiality, blind justice, and the rule of law not of men.

Also weak. Obama charged that Roberts' actions betrayed his favoritism towards the powerful, not his words or the Republicans' words generally. Which is only sensible, since entrenched favoritism usually travels accompanied by loud public protestations of fairness and impartiality.

And "social and economic justice" carries with it the entire baggage of liberal garbage ... affirmative action ... right of women to control their reproductive decisions ... the same old liberal crap, only this time he's saying that the courts should explicitly STAND UP for those things.

Putting aside the invective, you're right that Obama thinks the courts should stand up for affirmative action, abortion choice, etc. What does that have to do with the courts playing favorites?

Congress established the affirmative action programs in question. How is a court playing favorites when it enforces the law? [Unless you regard any reading of the constitution but "colorblindness" to be playing favorites.] How does recognizing a right to abortion play favorites? [Unless you believe that 8 week embryos are 'children', as Paul Barnes seems to.]

These are pretty mainstream positions,taken by the Court for decades now. Isn't a little over the top to go from them to: I've never seen a more explicit case made by a liberal that this should be a government of men and not of law, and that justice should favor one person over another. It's just outrageous.






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5.6.2008 11:31pm
DangerMouse:
pireader,

How on earth does calling for economic and social justice "explicitly" call for favoritism in the courts?

Because Obama himself said the court should stand up for those things. Legislators can have constituents, but it's an odd thing for COURTS to have constituents and to favor certain persons and policies. What do you think economic and social justice is? Do you have ANY IDEA what those terms mean? This is traditional, typical leftist cant we're talking about here. Or maybe you're just playing dumb.

you're right that Obama thinks the courts should stand up for affirmative action, abortion choice, etc. What does that have to do with the courts playing favorites?

Obama thinks it's unfair for a court to rule against affirmative action because it's a ruling against a minority in favor of a majority.

How does recognizing a right to abortion play favorites?

You can't seriously be asking this question when you must know that feminists on the left have demonized anyone who is against abortion as against women. Their rage suggests that being in favor of abortion means to them that you're in favor of women.

These are pretty mainstream positions,taken by the Court for decades now. Isn't a little over the top to go from them to: I've never seen a more explicit case made by a liberal that this should be a government of men and not of law, and that justice should favor one person over another. It's just outrageous.

It's one thing to be in favor of murdering babies (and let's not quibble, Obama favors that because he voted against a bill to provide newborn infants from botched abortions with human rights), it's another thing to think that women should win in a courtroom merely because it's a woman. Obama takes this to a whole new level. He's not legislating policies from the bench like your typical leftist. He's picking a winner before he even has a chance to hear the policy dispute because he thinks the people he picks as winners will share his policies.

I don't care if you think the argument is weak or not. I'm not the one who's deluded (or playing dumb) when it comes to the meaning of social &economic justice. That term is a rallying cry for the left around the world. And I've never seen a candidate who says that courts should play favorites between someone they think is powerful and someone they think isn't. Who's to say who's really powerful? Poor appliachian whites have been getting crapped on for years now thanks to the policies that Obama favors, which align with the majority-minority places he represented in Chicago. The so-called "powerful" have rights. And I don't appreciate the implication made by Obama in his denunciation of Roberts that just because whitey had historical privileges means that it's ok for the government to discriminate against men, or whites, or corporations, or whoever else he thinks is powerful.

Courts are supposed to play fair. Obama doesn't think so and thinks that they should favor some groups over others. If you don't understand why that's a problem, then you're just as whacked as he is.
5.6.2008 11:52pm
LM (mail):

It is the old lie once of the demagogue' BHO is simply the most dangerous person to ever seek the presidency in American history and the closest this country has ever come to nominating a fascist in the true sense of the word. He is truly terrifying.

This thread has jumped the shark.
5.6.2008 11:53pm
DangerMouse:
One other thing you said:

"You reply that he calls them to favor "economic and social justice" ... which sounds pretty harmless. Then you read that to mean favoritism--a reading that's less than obvious"

I don't know how standing up for economic justice isn't favoring the poor. I don't know how standing up for social justice isn't favoring the culture war the left has made against traditional America. Those code words are so obvious that the left uses them all the time.

See here for examples of "social justice" consisting of the same traditionalist-destroying dogma that's everywhere on the left. Abortion on demand, gay marriage, anti-death penalty, hate crimes legislation, etc., etc., etc. That's one link. There are millions upon millions of this crap out there. The term is synonymous with modern liberalism and its preferences.

Obama isn't using the term to say he'll appoint fair justices that'll treat everyone equally. He's using the term to say that if Gay Rights Group comes into court demanding X, he's going to appoint a judge that'll give it to them. And if Person Y sues the Boy Scouts again, he'll make sure they admit him. And if individual Z is up against the police facing the death penalty, he'll be sure that the justice finds a way around it. This is playing favorites, and has nothing to do with the law on marriage, freedom of association, or criminal law.
5.7.2008 12:02am
Almijisti:

It is the old lie once of the demagogue' BHO is simply the most dangerous person to ever seek the presidency in American history and the closest this country has ever come to nominating a fascist in the true sense of the word. He is truly terrifying.


This thread has jumped the shark.


This is not a case of Godwin's Law (though apparently it's quite ok for those on the left to call George W. Bush a nazi, fascist, dictator, criminal, etc...). At any rate, it's perfectly acceptable to criticize Obama as a fascist if I actually believe him to be a fascist, which I do. I am not the first to be disturbed by the Obamabot phenomenon--David Brooks has even written about it and he's no wingnut. It's positively creepy.

I am also referring to a) the man's charismatic hold on mush-headed followers; b) his undisputed socialist beliefs (not to mention radical socialist associates); c) the use of fascist imagery in campaign media; d) the fascistic quality of his large "rallies"; e) his over-the-top class warfare; f) his constant demagoguery over every issue, etc...Sorry; I can't think of any presidential nominee in my lifetime who came so close to at least mimicking the fascist ideal.

Are you one of those persons who were mistakenly taught that fascism was a right-wing phenomenon? I would recommend the works of John Flynn, Friedrick Hayek, etc.. to disabuse you of this common error.
5.7.2008 12:36am
Oren:
You do realize that Obama favors affirmative action, in the traditional liberal sense of quotas, right?
And I've said that I disagree with affirmative action AND quotas. There is not a single politician on the planet earth that I agree with 100% (hint: I'm in favor of the RKBA, including strong shall-issue CCW, and the right to sexual and reproductive freedom -- that rules out all the contenders in this particular election AFAIK).

Either the government discriminates against the Executive, or it does not. Which way do you rule? Obama says the government can discriminate against him in favor of the poor black guy. From what I hear you saying, you don't want that to happen but you don't seem to mind if it does because it's less harmful.
He never said that and I never said that. Try to pay better attention.

First off, I wasn't considering government discrimination, I was considering private discrimination in the context of economic services made available to the public (e.g. diners). Secondly, to me, it's a threshold issue: some discrimination is simply not a big enough deal to involve the legal system. The courts are not there for every little trifle.
5.7.2008 1:01am
Gaius Marius:
If I was Israel, I would be counting the days until President Barack Hussein Mohamad Obama gives the green light to Iran, Hezbollah, and Hamas to launch a final assault on Israel.
5.7.2008 1:46am
LM (mail):
Gaius,

Are you a Ralph Nader sock-puppet? Seriously. You can tell me. No one else is listening. I'm from the government and I'm here to help.
5.7.2008 2:05am
Oren:
Yes, because Barack Hitler Obama clearly wants the destruction of Israel. Sheesh.
5.7.2008 3:28am
Kazinski:
Oren,
I don't beleive that Obama wants the destruction of anyone, but I worry he is another Carter, unable to act and sitting by helplessly as destruction occurs.
5.7.2008 3:48am
JLV:
God bless you, DangerMouse.
5.7.2008 3:49am
LM (mail):

God bless you, DangerMouse

Ernest Penfold checks in.
5.7.2008 4:30am
Oren:
Kaz, yes, I worry about that too, which was my initial reason for supporting HRC.
5.7.2008 4:34am
Asher (mail):
I think it should be noted that (a) Obama didn't write this statement, and (b) it may just be political talk to a certain extent. I doubt that Obama really would choose judges on the basis of whether they're "out of touch," that he has as results-oriented a view of con law that this statement suggests, or that he really thinks that courts should interpret the law with social justice in mind. This doesn't even sound like something coming out of the mainstream of the Obama campaign. Social justice is a pretty lefty term. The types of people who think the courts should stand up for social justice believe that Washington v. Davis was a tragic mistake, that equal protection ought to be adjudicated on a purely disparate impact standard and that things like financing public schools on a property tax basis are unconstitutional. I don't think Obama's that far out. I do think if he's elected and gets to replace Scalia or Kennedy, you could see decisions like Parents Involved or Gonzales v. Carhart or Shaw v. Reno, just to throw out a couple examples, get overturned pretty quickly. You'd probably even see some nominees who are a little farther to the left than anyone currently on the Court. But I don't think he's going to nominate a William Douglas reincarnated, and I strongly doubt that this statement accurately reflects his views.
5.7.2008 4:41am
Extraneus (mail):
You go, DangerMouse. It's clear from the replies to your comments that it's now only right-wing nutballs who favor blind justice. I agree with you that this is a dangerous development.

During his confirmation hearings, Roberts specifically used the baseball umpire analogy, explaining that the job of a justice was to call balls and strikes, period. Those who would prefer an umpire who tightens or loosens the strike zone, depending on the socio-economic background of the batter, are in favor of changing the game of baseball. In other words, they are more interested in who wins or loses than they are in the rules. They may even say the rule-book should be a living document.
5.7.2008 7:59am
pireader (mail):
DangerMouse wrote-- I don't know how standing up for social justice isn't favoring the culture war the left has made against traditional America. Those code words are so obvious that the left uses them all the time. See here for examples of "social justice" consisting of the same traditionalist-destroying dogma that's everywhere on the left. Abortion on demand, gay marriage, anti-death penalty, hate crimes legislation, etc., etc., etc. ... The term is synonymous with modern liberalism and its preferences.

You're convinced that Obama's using "code words" which you, and only you, can de-code correctly. But in fact, people ranging from popes to Marxists have used those innocuous and vague words to mean wildy different things over the years.

Here's an example. Roger Mahony, long-time Catholic Cardinal of Los Angeles, strongly supports "economic justice" and "social justice" as he defines them. Yet he's sternly opposed to abortion, gay marriage, etc.
So I don't think those "code words" mean what you think they mean.

And, no, I don't believe those words mean the same thing to Obama as to Mahony. My point is that they're so vague they don't mean much at all.

Frankly, you're reduced to reading such implausible extremist meanings into those "code words" because you don't really have any evidence that Obama believes in the courts playing favorites. As I pointed out above, what he's actually called for is an end to the favoritism that (he believes) exists today.

How does recognizing a right to abortion play favorites?

You can't seriously be asking this question when you must know that feminists on the left have demonized anyone who is against abortion as against women. Their rage suggests that being in favor of abortion means to them that you're in favor of women.


My question was quite serious: I don't see why supporting abortion rights amounts to playing favorites. And I certainly don't see why finding some rage-filled demonizers who believe X must make X true. If that logic worked, then we could all prove lots of weird conclusions very easily. [And, by the way, most feminists who support abortion rights aren't rage-filled demonizers; but that's another story for another day.]

Obama isn't using the term to say he'll appoint fair justices that'll treat everyone equally. He's using the term to say that if Gay Rights Group comes into court demanding X, he's going to appoint a judge that'll give it to them.

You keep asserting this implausible extremist reading of Obama's rather innocuous words. Show us where the real Obama actually said the things that the Obama in your head secretly thinks.
5.7.2008 9:13am
Prosecutorial Indiscretion:
In response to Asher: it's not as though Obama is dependent on advisers with respect to his position on judges. He's thought about these issues for quite some time and in quite some depth. I would expect him to be more responsible for the content of his campaign's position on judges than on almost any other topic.

Consistent with the rest of his Senate record, Obama's opposition to Roberts undermines the idea that he is a consensus-builder willing to cross the aisle in the spirit of bipartisanship. I'm surprised his campaign is pushing this partisan angle now when it seems they should be reaching toward the middle in anticipation of the general election, but maybe they think they can sufficiently demonize the Chief Justice to make him a liability for McCain. Is that the "new kind of politics" we keep hearing about?
5.7.2008 9:31am
A.C.:
Who is Obama talking to, anyway? In the opinion of most "ordinary Americans" that I know, the government is a wash. It benefits them in some ways and burdens them in others, and they come out close to even. They don't expect it to favor their interests, particularly, but they don't expect it to disfavor them either. The women included, I might add. That's what being "average" or "ordinary" means.

Such people often feel squeezed on both sides, on the one hand by "the powerful" who lobby for special privileges from the government, and on the other by "the weak" who... lobby for special privileges from the government. The middle perceives, correctly in my opinion, that both groups want to take over the ground that the middle occupies, and to use government power to do so.

Thus the hostility to illegal immigrants in some quarters -- business interests and foreigners who will work for low wages can be seen as combining to squeeze the wages of American workers.

I would think that the middle, which by nature would have a variety of interests (i.e., different combinations of advantages and disadvantages) and therefore be hard to organize, would be the logical constituency for limited government and the rule of law. I point this out because the debate so far has been about "the powerful" and "the weak," without any consideration of whether there is a third group hanging around to screw up the analysis.
5.7.2008 10:27am
DangerMouse:
You're convinced that Obama's using "code words" which you, and only you, can de-code correctly. But in fact, people ranging from popes to Marxists have used those innocuous and vague words to mean wildy different things over the years.

Where did I say that only I could figure this out? I think Obama's results-based judging policy is clear as crystal from this statement of his. And I think that anyone remotely familiar with the way "social justice" and "economic justice" has been spoken of in America would see it as plain as the sun. Marxists use the term, and that's not a hint to you? Popes use it to talk about the Catholic belief in the PREFERENTIAL TREATMENT OF THE POOR. Sheesh. Google that phrase if you've never heard it. You're actually making my point for me.

Here's an example. Roger Mahony, long-time Catholic Cardinal of Los Angeles, strongly supports "economic justice" and "social justice" as he defines them. Yet he's sternly opposed to abortion, gay marriage, etc.
So I don't think those "code words" mean what you think they mean.


NOW this thread has jumped the shark. Yes, Mahoney supports the Catholic preferential treatment of the poor, but I'm Catholic and Roger Mahoney is well known as a disgrace. He only is opposed to abortion because if he supported it he'd be stripped of his office. He has walked right up to the line on gay marriage. He is an embarassment and many, many people have appealed to Benedict to do something about Mahoney. If anything, your mentioning him only confirms my analysis. Thanks.

Show us where the real Obama actually said the things that the Obama in your head secretly thinks.

There is no secret: our courts should stand up for social and economic justice. That's as plain to his supporters as it is to me. You're the only one who seems to be in denial.
5.7.2008 12:28pm
Andy (mail):
"Social justice" IS a code-word. There's nothing secret about it -- it's a highly loaded, commonly used term that is inextricably linked to concepts such as "leveling the playing field" which are ultimately based on Marxist-Leninist (more Leninist than Marxist) ideology.

A good example of a right-wing equivalent would be "family values." If McCain promises to elect judges who support family values, everyone knows what that means, its not just a nice, vague concept.
5.7.2008 12:34pm
Extraneus (mail):
Wikipedia has an entry on social justice which doesn't indicate that its meaning is very nebulous.
5.7.2008 12:46pm
PLR:
Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.

Now pushing 90 responses, and still I haven't seen anyone explain why this statement portends the downfall of the Republic.

A couple of definitions for the non-lawyers (and lapsed lawyers) from dictionary.law.com:

Judicial: 1) referring to a judge, court or the court system. 2) fair.

Justice: 1) fairness. 2) moral rightness. 3) a scheme or system of law in which every person receives his/ her/its due from the system, including all rights, both natural and legal.
5.7.2008 1:20pm
whit:
" "Social justice" IS a code-word. There's nothing secret about it -- it's a highly loaded, commonly used term that is inextricably linked to concepts such as "leveling the playing field" which are ultimately based on Marxist-Leninist (more Leninist than Marxist) ideology.

A good example of a right-wing equivalent would be "family values." If McCain promises to elect judges who support family values, everyone knows what that means, its not just a nice, vague concept."

i think a better example of a "code word" (from a leftis's standpoint) is "state's rights". ok... codeterm, but you get my point.

imo, and ime social justice basically entails a push towards equality of condition. the problem with equality of condition is that it necessarily requires inequality of treatment and opportunity.

you can think of a million examples. racial quotas are one.
5.7.2008 1:54pm
Oren:
If McCain promises to elect judges who support family values, everyone knows what that means
Sleeping with prostitutes? Seducing young boys? Doing meth while sleeping with a gay prostitute?
5.7.2008 2:11pm
NickM (mail) (www):

You're convinced that Obama's using "code words" which you, and only you, can de-code correctly. But in fact, people ranging from popes to Marxists have used those innocuous and vague words to mean wildy different things over the years.

Here's an example. Roger Mahony, long-time Catholic Cardinal of Los Angeles, strongly supports "economic justice" and "social justice" as he defines them. Yet he's sternly opposed to abortion, gay marriage, etc.
So I don't think those "code words" mean what you think they mean.

And, no, I don't believe those words mean the same thing to Obama as to Mahony. My point is that they're so vague they don't mean much at all.


That sounds more like an indictment than a defense of Obama. If "economic justice" and "social justice" are meaningless phrases, then he is attacking McCain by stating his own belief that the courts should stand up for either nothing, or for things which the individual listener decides for himself. Both of those are demagoguery, pure and simple. The Kingfish is not an admirable model for Presidential candidates.

It would be really strange to talk about abortion, same-sex marriage, affirmative action, and most of the hot issues on the Supreme Court's docket over the last few years as "economic justice" - "equal rights", "individual rights", "personal liberty", "equality", etc. would appear to be much more appropriate terms.

Obama meant something by "economic justice".

Did he mean what the Center for Economic and Social Justice means - a "Third Way" between capitalism and socialism, based on a "system of economic justice as defined by Louis Kelso and Mortimer Adler, [where] there are three essential and interdependent principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony."?

Did he mean what the American Friends Service Committeemeans (top issue listed is "Make the Minimum Wage a Living Wage")?

Did he mean what the U.S. Catholic bishops' 1986 Pastoral Letter on Catholic Social Teaching and the U.S. Economymeans?

17. Human rights are the minimum conditions for life in community. In Catholic teaching, human rights include not only civil and political rights but also economic rights. As Pope John XXIII declared, "all people have a right to life, food, clothing, shelter, rest, medical care, education, and employment." These means that when people are without a chance to earn a living, and must go hungry and homeless, they are being denied basic rights. Society must ensure that these rights are protected. In this way, we will ensure that the minimum conditions of economic justice are met for all our sisters and brothers.


Did he mean what NOW means?

NOW advocates for wide range of economic justice issues affecting women, from the glass ceiling to the sticky floor of poverty. These include welfare reform, livable wages, job discrimination, pay equity, housing, social security and pension reform, and much more.


There is a common thread that keeps popping up in different groups' definitions of "economic justice": "livable" wages and universal health care. Considering that the political process has achieved neither of these, what is Barack Obama proposing that the courts stand up for? Is this code for wanting judges who would find Constitutional rights that have heretofore only been found in law review articles, such as a right to a guaranteed income or government-paid health care?

Couple his statements with the interview he gave the Chicago Reader when he first ran for office:

While no political opposition to Obama has arisen yet, many have expressed doubts about the practicality of his ambitions. Obama himself says he's not certain that his experimental plunge into electoral politics can produce the kind of community empowerment and economic change he's after.

"Three major doubts have been raised," he said. The first is whether in today's political environment--with its emphasis on media and money--a grass-roots movement can even be created. Will people still answer the call of participatory politics?

"Second," Obama said, "many believe that the country is too racially polarized to build the kind of multiracial coalitions necessary to bring about massive economic change.

"Third, is it possible for those of us working through the Democratic Party to figure out ways to use the political process to create jobs for our communities?"


Is there anything out of line in worrying that his call "that our courts should stand up for social and economic justice" is how he would implement the "massive economic change" he called for? How about in worrying what the "massive economic change" would consist of? [Remember that he was calling for that in 1995, long before the Bush tax cuts or the 1996 welfare reform law, so it's not that he wants to reverse those.

Nick
5.7.2008 2:38pm
SIG357:
PLR


"Barack Obama has always believed that our courts should stand up for social and economic justice"

This really is not that difficult. Per the US Constitution;

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.



The Court has no authority to "stand up for social and economic justice". That is not its role, and it's disturbing that Obama made it through law school without learning that. If you want social and economic change, do what you're supposed to do - work for it via the political process.

Why is "democracy" such a dirty word for Democrats?
5.7.2008 3:38pm
SIG357:
This doesn't even sound like something coming out of the mainstream of the Obama campaign. Social justice is a pretty lefty term.

If you don't know that Obama is pretty much a lefty, you have not been following politics very closely.
5.7.2008 3:41pm
Gary McGath (www):
Oh, great. Obama thinks that McCain isn't a strong enough supporter of McCain-Feingold. There goes my last reason for hoping Obama would be some sort of improvement.
5.7.2008 3:51pm
wfjag:
Well Professor, it's all clear now. The Obama Campaign has exposed VC as a Weekly Standard front whose bloggers would be Ann Coulter wanna-bees except they won't wear tight leather skirts.

Sarcasm off. I just love being expected to have any idea about a candidate's positions when all that's stated are platitudes, clichés and buzz words, and "discussions" of the same. Will the real Barak Obama please stand up?
5.7.2008 3:52pm
PLR:
The Court has no authority to "stand up for social and economic justice". That is not its role, and it's disturbing that Obama made it through law school without learning that. If you want social and economic change, do what you're supposed to do - work for it via the political process.

I'm guessing you're not a Harvard Law alum. Among others.
5.7.2008 4:21pm
Suzy (mail):
I'm not sure how well I like or understand Obama yet, but I definitely don't understand the concerns here. I'm in favor of helping the poor, yet I'm not against the wealthy. I'm in favor of women, yet I'm not against men. Where did we get the strange idea that the opposite conclusions should follow?

I read the statement as a fairly nondescript political platitude. Aren't all politicians on the side of "ordinary Americans", whoever those are? I don't know what this supposedly sinister meaning of "social and economic justice" is, either. Would you prefer that the courts stand for social and economic injustice? I think it's a code word for something like "everyone should vote for me because I will somehow represent everyone's interests, all of you ordinary Americans". Not impressive, not shocking.
5.7.2008 6:06pm
Oren:
I'm not sure how well I like or understand Obama yet, but I definitely don't understand the concerns here. I'm in favor of helping the poor, yet I'm not against the wealthy. I'm in favor of women, yet I'm not against men. Where did we get the strange idea that the opposite conclusions should follow?
Mostly from powerful groups that see any attack on their historical prerogatives as a frontal assault on their core beliefs (e.g. Christians that are mad that Lemon would dare to imply that the government may not favor Christianity merely because it always did -- see also "The War on Christmas").
5.7.2008 6:16pm
LM (mail):

I'm not sure how well I like or understand Obama yet, but I definitely don't understand the concerns here. I'm in favor of helping the poor, yet I'm not against the wealthy. I'm in favor of women, yet I'm not against men. Where did we get the strange idea that the opposite conclusions should follow?

Yes, where would we get such ideas?
5.7.2008 6:48pm
SenatorX (mail):
I watched Obama mention he was for Social Justice the other day and cringed. Anyone who had read Hayek or any of the philosophies against socialism will know why this is such a dangerous concept. I suspect the ignorant will think it's a great idea. This sort of stuff from Obama worries me much more than the racist Wright fiasco.
5.7.2008 7:13pm
Litigator-London (mail):
Over a hundred years ago, an English Judge remarked that the doors of the Courts were open to all, but so were the doors of the Ritz Hotel. I appreciate that may who frequent this blog will be very disturbed by the prospect of a president who will propose liberal and reforming jurists for appointment to the US federal bench. In so doing he may take the first steps towards re-integrating the US judicial system into the common law consensus. Who knows, we may yet see once again the constitutional guarantees of your Bill of Rights interpreted in accordance with contemporary standards of decency.

Beneath the statue of Justice over London's Old Bailey over the Judges' Entrance there are inscribed the words “Defend the children of the poor and punish the wrongdoer.” which many of you may recognise as familiar since they come from Coverdale’s translation of Psalm 72 in the Book of Common Prayer. They remain relevant more than 400 years after they were translated and 2500 years after they were first written. We expect our justice system to protect the most innocent and vulnerable members of our community and to punish those who harm them.

A predatory lender today is as much a wrongdoer as was the medieval robber baron. The concepts of social and economic justice are not and never have been alien to the law and the proper discharge of the judicial function - unless, of course you happen to be an "originalist" heretic.
5.7.2008 7:46pm
LM (mail):

The concepts of social and economic justice are not and never have been alien to the law and the proper discharge of the judicial function - unless, of course you happen to be an "originalist" heretic.

How European of you to think there's room for intermediate points of view. If you're not an originalist, you're a Marxist. If you're not Antonin Scalia, you're Lynne Stewart. If you don't object to all taxation, you're an authoritarian stormtrooper. Sure, you'll tell us that "Labor" and "Social Democrat" are commonplace terms in several longstanding, relatively entrepreneurial, relatively free-market democracies, but we can see through that to your dreams of bigger Gulags and deadlier Cultural Revolutions. In fact your very use of a word like "relatively" (yes, I know I'm the one who used it, but I'm sure you were thinking it) marks you as morally beyond redemption.

OK, not I'm the one engaging in hyperbole. That represents only some of the views on these boards.
5.7.2008 9:07pm
CDR D (mail):
>>>I appreciate that may who frequent this blog will be very disturbed by the prospect of a president who will propose liberal and reforming jurists for appointment to the US federal bench. In so doing he may take the first steps towards re-integrating the US judicial system into the common law consensus. Who knows, we may yet see once again the constitutional guarantees of your Bill of Rights interpreted in accordance with contemporary standards of decency.

<<<

Our Constitution is not supposed to be "common law". It is a democratically adopted charter for government, and it provides in Article V the mechanism for adapting to any so-called "contemporary standards of decency".

Appointing judges to make those adaptations is nothing less than Caesarism.
5.7.2008 9:10pm
Litigator-London (mail):
CDR D: If you read my post again, you will not find me suggesting that your Constitution was "common law" - how could it be ? I was speaking of your judicial system. Early colonies - such as Virginia - expressly provided upon independence that their law was to be the English common law until modified by statute. While Federal Courts are creatures of statute, their procedures and remedies are grounded in the common law, or do you suggest the expressions "habeas corpus", "certiorari", "stare decisis", come from some native American source? Your Constitution was much influenced by common lawyers, your Bill of Rights owes much to ours, even your Federal Rules of Civil Procedure are largely derived from the 1936 version of our Rules of the Supreme Court.
5.9.2008 3:05pm
fishbane (mail):
I think those arguing that our current slate of judges are fair minded dispensers of blind justice might fruitfully look at what that notorious flaming liberal Posner has to say on the topic.
5.9.2008 3:14pm
CDR D (mail):
>>>If you read my post again, you will not find me suggesting that your Constitution was "common law" - how could it be ? I was speaking of your judicial system. Early colonies - such as Virginia - expressly provided upon independence that their law was to be the English common law until modified by statute. While Federal Courts are creatures of statute, their procedures and remedies are grounded in the common law, or do you suggest the expressions "habeas corpus", "certiorari", "stare decisis", come from some native American source? Your Constitution was much influenced by common lawyers, your Bill of Rights owes much to ours, even your Federal Rules of Civil Procedure are largely derived from the 1936 version of our Rules of the Supreme Court.

<<<

There can be no doubt that our Constitution is grounded in the common law which preceded its ratification.

However, once adopted as the charter that it is, it is not subject to the vagaries of the common law. Otherwise, it is just another worthless piece of paper.

"Evolving Standards of Decency", the determination of which is to be made by un-elected judges, is un-democratic and authoritarian.

When you say, "we may yet see once again the constitutional guarantees of your Bill of Rights interpreted in accordance with contemporary standards of decency", I think of the eighth amendment's proscription of cruel and unusual punishment as an example of how judges opposed to capital punishment would be inclined to declare such punishment "unconstitutional", notwithstanding the plain fact that capital punishment is clearly contemplated in our Constitution:

Viz:

"No person shall be be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, etc. etc..."

Now, if "contemporary standards of decency" demand that capital punishment be abolished, then "We The People" have the mechanism to make it happen: Article V.

It's not the province of un-elected judges.
5.9.2008 10:24pm