Bench Memos

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Obama’s Judicial Nominees


In this essay, Princeton professor (and—disclosure—Ethics and Public Policy Center board member) Robert P. George argues that the real-world constraints in the fields of national security and economics make it all the more certain that President Obama will deliver to “the left, fully and without dilution, victory on the moral and cultural issues”, especially through the courts:


What Obama’s judicial nominees will have in common is a belief that judicial power may legitimately be used, and should be used to achieve left-liberal moral and political goals. Their belief lacks any basis in the text of the Constitution, the logic of its provisions, or its structure and original understanding, but never mind. Some will propose moving quickly, others more cautiously and gradually, but all will subscribe to one version or another of the idea that the “majestic generalities” of the Constitution (free speech, due process, equal protection) need to be given content by judges reading into them ideas such as abolishing the legal definition of marriage as the conjugal union of husband and wife, extending legal abortion, requiring the public funding of abortion, and invalidating parental notification and informed consent laws and laws affording conscience and religious liberty protection to pro-life physicians, healthcare workers, and pharmacists.

The Obama judges are likely to revive the idea (championed by influential liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme Court) that there is a constitutional right to assisted suicide, and expand constitutional protection of pornography, including “virtual” child pornography that is manufactured without the use of actual children. They will defend preference-based affirmative action policies in hiring and employment as constitutionally warranted efforts to achieve an allegedly compelling state interest in racial, ethnic, and sexual “diversity.” They will likely place further restrictions on religious activities and expression in public schools and other governmental institutions by adopting a broad reading of the “establishment clause” and a narrow reading of the “free exercise” clause of the First Amendment.


Alas, that sounds accurate to me.

Tags: Whelan


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