In my Weekly Standard essay from mid-March, I showed how Barack Obama’s record and rhetoric on judicial nominations reveal him to be “a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism.” In a softball interview with CNN’s Wolf Blitzer last week, Barack Obama provided further evidence of his sweeping liberal judicial activism. Some excerpts from this transcript (emphasis added):
BLITZER: You know a lot about the Supreme Court. And the next president of the United States will have an opportunity to nominate justices for the Supreme Court. He gave a speech, McCain, this week saying he wants justices like Samuel Alito and John Roberts. And he defined the kind of criteria he wants. So, what would be your criteria?
OBAMA: Well, I think that my first criteria is to make sure that these are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that it’s just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think…
* * *
OBAMA: What you’re looking for is somebody who is going to apply the law where it’s clear. Now, there’s going to be those 5 percent of cases or 1 percent of cases where the law isn’t clear. And the judge then has to 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’s 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 — from being dealt with sometimes unfairly, that the courts become a refuge for judges.
Let’s examine the Obama two-step:
1. Obama first tries to minimize for the general public the importance of who picks Supreme Court justices. After Blitzer helpfully assures the audience that Obama “know[s] a lot about the Supreme Court,” Obama asserts—in the context of discussing the Supreme Court—that “95 percent of the time, the law is so clear, that it’s just a matter of applying the law.” A bit later, he states that “cases where the law isn’t clear” are “5 percent of cases or 1 percent of cases.”
As Obama ought to know, the unanimity rate on the Supreme Court is nowhere near 95%. According to the Harvard Law Review’s statistics for the past three terms, cases with dissents accounted for 64.4% (2006 term), 45.7% (2005 term), and 62.0% (2004 term) of all cases. Indeed, last term, cases dividing 5-4 accounted for over a third of all cases, and the three justices that Obama cited as justices he likes—Breyer, Ginsburg, and Souter—agreed in the disposition of non-unanimous cases only 61%, 60%, and 63% of the time, respectively.
Obama could of course maintain that the Court majority is misapplying clear law in lots of cases. But that’s not his argument. Instead, he’s pretending that the divide among the justices is far less than it actually is—and that he’s “not somebody who believes in a bunch of judicial lawmaking.”
2. When the law isn’t clear, Obama argues, “the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.” But, contrary to Obama’s position, there is nothing inevitable about the judicial activism that he prescribes. For example, in cases in which a statute is being challenged as violative of the Constitution, a justice who ultimately finds it unclear whether the statute in fact violates the Constitution ought—under principles of judicial restraint—to let the statute stand. What possible authority does the justice have for resorting to “his or her own perspectives, his ethics, his or her moral bearings” to strike down the statute?
It of course sounds enticing that justices should be “sympathetic enough” to side with the “vulnerable” and the “powerless”. But those are highly manipulable terms that liberal judicial activists apply selectively. Somehow their sympathies are never exercised for, say, inner-city children deprived of school choice or for the most vulnerable and powerless group of human beings among us, the unborn. Within the broad bounds of the Constitution, it’s the role of citizens and legislators to decide whether and how to express our sympathies through the democratic processes; it is not the proper role of justices to invoke their own sympathies to override the give-and-take of democratic politics.