The Volokh Conspiracy - Barack Obama on the Courts as a "Refuge for Justice":

[Orin Kerr, May 9, 2008 at 11:09am] Trackbacks

Barack Obama on the Courts as a "Refuge for Justice":

In an interview yesterday with CNN's Wolf Blitzer, Barack Obama spoke again on what kind of judge he would want appointed to the federal courts (he discusses the topic starting around the 9 minute mark). An excerpt:

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings — and, in those circumstances, what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly. The courts become a refuge for justice. That's been its historic role. That was its role in Brown v. Board of Education.

Unfortunately, Blitzer did not ask Obama an open-ended question of which Justices past or present he most admires, to get a better idea of what Obama has in mind. Instead, Blitzer asked Obama which Justices Obama likes among the Justices on the bench "right now." Obama responds that he thinks Justices Breyer and Ginsburg are "very sensible," and that even Justice Souter - who Obama notes is a Republican-nominated Justice --is "a sensible judge."

UPDATE: In the comment thread, "Terrivus" offers an interesting perspective that (as far as I know) I haven't seen expressed elsewhere. I'm not sure if I agree with it, and parts of it seem clearly overstated. But it seems interesting enough to bring to the main text for discussion:

What's interesting is that Obama's very campaign is upending traditional notions of who has "access" to political power, and yet his approach to judicial nominations is premised on those traditional notions. Using the courts to protect "discrete and insular minorities" may have made much more sense in a time when it realistically wasn't as possible — from a structural point of view — for such groups to have adequate representation in the political process.

But advances in media and technology — as illustrated by Obama's own campaign, which was initiated within and is largely propelled by the netroots community — have largely removed these barriers today. Think of any group that would count as a "discrete and insular minority": blacks, Hispanics, gays, black Hispanic gays — anything. In the 1940s and 1950s, it was much easier for the political process to structurally cut those groups off. Today? Every one of these groups has the ability to come together, raise money, raise awareness, and attract followers and sympathizers in the public and among representatives. There is simply no "discrete and insular minority" that doesn't have the ability to access the political process these days in the same manner as all groups.

Now, does that mean that each of these minorities *gets their way* on every issue? No — they might often get outvoted. But getting outvoted after a thorough airing of issues is much different than not getting an airing at all. And after a couple more years of awareness and making arguments, those minorities may eventually change the public view enough to gain enough votes to put their favored policies in place. And that's democracy.

So I just find it odd that Obama's approach to judges rests on notions of the political process that his own campaign has proven are antiquated.