The Obama Judicial Record

by William J. Haun

If it is true that much unhappiness in the world has come because of things left unsaid, then we would be wise to turn our attention to an issue left unsaid by both Governor Romney and President Obama during their respective convention speeches: the role of the courts, and their state after four years of liberal judicial nominees.

Before President Obama came into office, he announced his now infamous “empathy standard” for judicial selection. While many have rightly criticized the standard’s blatant biases in favor of certain litigants, the constitutional contortion engaged in by the president’s judicial nominees runs through and well past the traditional gambit of “hot button” issues before the courts — implicating the structural divisions of power within our Constitution that preserve limited government, our national defense, criminal procedure, and free association. A brief survey of what the president’s nominees have wrought manifests the need to bring the role of the courts into the thick of our national debate:

— Justice Sonia Sotomayor: President Obama’s first Supreme Court nominee wrote her first major dissent in Berghuis v. Thompkins — a case involving how a suspect invokes his Miranda right to silence. Justice Sotomayor led the dissenters’ curious argument that an accused person does not have to invoke his right to silence to cease the interrogation; notwithstanding the fact that the counterpart Miranda right to an attorney requires you to request one, that the law traditionally understands silence to betoken consent, and that prior case law demonstrated the accused could waive his Miranda rights by remaining silent after being made aware of them.  While much of the Court-crafted Miranda case law is constitutionally unmoored, Justice Sotomayor’s dissent interprets Miranda’s aim of ensuring non-coercive interrogations in a way that would compromise reasonable police investigations of crime.

The goal of stretching the courts’ limits within our constitutional system to address perceived injustice is perhaps best represented in an extraordinary 2010 dissent from Justice Sotomayor. She was the sole justice to desire hearing a petition from a prisoner who refused to take his HIV medication so he would be unfit for the hard labor imposed upon him. Despite the district court, the Fifth Circuit, and all of her Supreme Court colleagues finding that making a convict perform his sentence cannot be “cruel and unusual punishment” under the Eighth Amendment, Justice Sotomayor wrote a lengthy dissent chastising the “deliberate indifference” of prison officials. Time and again, the president’s nominees want to take the courts outside of their limited judicial role and into the role of social policymaker on a case-by-case basis. 

— Justice Elena Kagan: Unlike many other governing charters, our federal Constitution protects the people from government; it does not mandate what government must do for us. Such a design of “negative liberty” keeps our government limited, and power within the people’s province. This caused President Obama much consternation in an interview he gave explaining why the Warren Court of the 1950s and 1960s “wasn’t that radical” because “it didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution.” Justice Kagan had a similar complaint in 1988 when she reportedly “worr[ied] that a majority of this court will agree . . . that ‘the Constitution is a charter of negative rather than positive liberties.’” Justice Kagan’s preference for positive rights permeates some of her jurisprudence.

In Arizona Christian School Tuition Organization v. Winn, Justice Kagan led the dissenters in arguing that individuals could challenge a state law giving tax credits to organizations that gave out scholarships to students that could be used at religious schools. To reach this result, Justice Kagan had to contort the doctrine of standing, which prevents federal courts from playing legislature by requiring all plaintiffs to show an actual legal injury before proceeding. As such, a taxpayer cannot contest revenue spending by the government in court simply because they pay taxes. While there is a narrow exception when the government is funding activities that could advance or inhibit religion, Justice Kagan wanted to broaden this exception to include tax credits — which is not actually a government expense. Justice Kagan’s analyses would allow courts to use a narrow exception to create a right to taxpayer standing so they can second-guess the spending choices of local legislatures. 

Yet there is perhaps no more explicit expansion of court power than when the Supreme Court reads into a Constitutional provision an imposition on democratic authority never agreed to by the people. Justice Kagan spearheaded that effort last term in Miller v. Alabama, which held that a state making life without parole a mandatory sentence for certain offenses ran afoul of the Eighth Amendment’s prohibition on “cruel and unusual punishments.” At the outset, it bears noting that the analyses Justice Kagan employed, whether such a law comports with the “evolving standards of decency that mark the progress of a maturing society” was confined to death-penalty cases — until the Court said it wasn’t anymore. Regardless of the wisdom behind Alabama’s law, panta rhei is not a judicial philosophy; it’s blatant judicial power-grabbing.

— Justice Goodwin Liu: The failure of President Obama’s nomination of Goodwin Liu (who now sits on the California Supreme Court) to the U.S. Court of Appeals for the Ninth Circuit staved off another threat to expanding the power of courts at the expense of rightful democratic authority: eliminating the state-action doctrine. To the dismay of those who reject the role of a judge as neutral adjudicator in favor of the role of policymaker (as Justice Liu does), the Constitution only applies against the federal and state governments, respectively. If anyone else violates your rights in some way, your recourse is to federal or state statutes, not the Constitution. But to activists who want to use some of the Constitution’s broader phrases like “due process” and “equal protection” to craft new rights, this “state action” requirement is simply an inhibitor to larger government control. Then-professor Liu’s writings in National Citizenship and the Promise of Equal Opportunity vent this frustration when he says that judicially crafted constitutional rights should be enforced against any person’s action, “regardless of state action or inaction.” Such a theory of interpretation, in addition to nullifying the text of the Fifth and Fourteenth Amendments, would jeopardize any institution — such as Hillsdale College — that would rather not have the Supreme Court’s affirmative-action requirements, or other requirements, be imposed on their policies. Every entity, and any person, would be a constitutional actor if Professor Liu’s view of state action carried the day.

— Judge Louis Butler: Twice rejected by the voters of Wisconsin for a seat on their supreme court, President Obama nominated him to serve on the U.S. District Court for the Western District of Wisconsin. His historic losses — the first Wisconsin supreme court justice to lose a reelection bid since 1967 — coincided with then-Justice Butler running around Wisconsin’s efforts at tort reform by adopting a “collective liability” approach to products-liability cases (meaning that whether or not the manufacturer actually made the defective product was irrelevant to making it liable), and ruling the state’s noneconomic-damages cap unconstitutional. Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit once called Judge Butler’s insupportably broad interpretation of search and seizure protections “pure unvarnished result-orientation.”

— Judge Andrew Hurwitz: President Obama’s recent nominee to the U.S. Court of Appeals for the Ninth Circuit, though refusing to subscribe to a judicial philosophy, praised the judge he clerked for as creating the analytical ground work for Roe v. Wade. What’s more, he previously lamented the fact that judges follow legal standards by upholding convictions with “harmless errors” to avoid second-guessing a valid jury verdict. Time and again, the president’s nominees want to take the courts outside of their limited judicial role and into the role of social policymaker on a case-by-case basis. 

— Judge Katherine Forrest: Just this past month, Judge Katherine Forrest — an Obama appointee on the U.S. District Court for the Southern District of New York — ruled that the portion of the National Defense Authorization Act providing indefinite detention of those who provide “material support” to terrorists was unenforceable and unconstitutional. As with Justice Kagan’s contortion of standing in Winn, Judge Forrest tap danced around the doctrine here to reach her desired result. Even while the Obamaadministration argued that the press reporters who brought the claim “are not subject to law of war detention” and could thus never be harmed under the act, Judge Forrest found a cognizable injury anyway to reach her desired result. The U.S. Court of Appeals for the Second Circuit swiftly lifted the ban on enforcing the law that Judge Forrest imposed, and none should be surprised if her standing analysis is reversed as well after they hear the case on September 28. 

— ABA Reviews: Though reliably left-leaning, not even the American Bar Association can avoid giving low ratings to many of the president’s judicial nominees. A record-number of “not qualified” ratings were given to President Obama’s nominees (primarily district court nominees). To the extent the ABA does follow its own evaluative standards, district court nominees with courtroom experience fare better than those coming from internal government work or being a law professor. Yet such standards are an inhibition if you think that judges should be less concerned about the proper role of the judiciary, and more concerned about making case results jive with broader policy theories — as we’ve so frequently observed in President Obama’s nominees.

The view of positive rights seemingly shared by many of President Obama’s nominees and himself — the view that the government, specifically the court, has an obligation to do things for you — underlies the efforts to subvert the Constitution’s limitations on power and the judicial role. These efforts do not always come from the Supreme Court, or in cases with high-profile topics. But that does not mean they should go unnoticed in our national debate. The result of such indifference is to let judges erode the limits on power within the Constitution, and ignore the fact that it is the structural features of our Constitution — separated powers, federalism, a limited judicial role — that actually preserves liberty. These features are threatened by four more years of judicial nominees who recognize that, in the 95 percent of cases where most Americans aren’t watching the courts closely, they can change the Constitution and expand judicial power. Let us not leave these concerns unsaid — or there will be more unhappiness to come.

— William J. Haun is a lawyer in Washington, D.C. and policy chairman of the Young Conservatives Coalition.

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