Bench Memos

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Courting Obama—Part 2


Now let’s look at the second article, titled “Obama’s Appointments Are Expected To Reshape the U.S. Legal Landscape”.  Just a few comments:

1.  The general thesis of the article—that Obama will be able to appoint lots of appellate judges and (in some cases soon, in other cases over time) swing circuits with current Republican-appointee majorities to Democratic-appointee majorities—is correct. 

2.  It may well be that these lower-court appointments will “reshape the U.S. legal landscape” and lead to a “major shift”, but the article curiously fails to mention that federal appellate judges are obligated to follow Supreme Court precedent.  If Obama appointees do so in good faith, then it seems unlikely that the shift will be as dramatic as the article suggests. 

3.  The article states that “Obama’s past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.”  Even while it’s long been clear that abortion is the cause célèbre of the Left, it’s striking to see the Post present belief in the fiction that the Constitution protects a right to abortion as the defining feature of a “liberal judicial philosophy”.

4.  The article posits “the Supreme Court’s conservative direction”.  Will the next reporter who uses a phrase like this please try to explain how a Court with Justice Kennedy as the deciding vote—the same Kennedy who wrote and/or voted as he did in cases like Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene, Rasul, Hamdan, Lee v. Weisman, and various Eighth Amendment/death penalty cases—can be said to have a “conservative direction”?

Tags: Whelan


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