Bench Memos

Pamela Harris: A Vote for the Obama Administration

Over the last few days, Carrie Severino and I have been discussing the nomination of Pamela Harris, a former Obama political appointee, as a judge for the Fourth Circuit. (Here are links to Parts 12, 3, 4, and 5 of this series.) As it turns out, Harris’s judicial philosophy typifies everything that the public has come to expect from radical judges.

For instance, Harris has admitted that she thinks the Warren Court — which more or less defines judicial activism in American history – was too conservative

As Carrie noted before, Harris also explicitly endorses the idea that the Constitution is always evolving (although only in a leftward direction), which explains why she can say with a straight face that our 200-year-old Constitution is a “progressive” document that, miraculously, supports her modern liberal political agenda. She denies that the Constitution has a fixed meaning that can be known by looking at its text and history, and instead must be interpreted by exegeting modern social movements.

To see how radical Harris really is, let’s consider a case from the current Supreme Court term. At an event at Georgetown University Law Center in 2013, Harris commented on the use of treaties to authorize federal criminal statutes against local conduct in Bond v. United Stateswhich involved a prosecution for a simple assault under a federal chemical-weapons treaty and its implementing statute:

I did think this argument that what will likely appeal to the Court, this idea that well, whatever the Court said in Missouri v. Holland, just as a factual matter, the kinds of things now covered by treaties has really changed since then. That’s the kind of argument that I always find appealing because right, like the Constitution evolves, it has to keep pace with changes in the factual predicates, and yes, our readings of constitutional provisions ought to change and evolve in light of circumstances on the ground like that.

Setting aside for a moment the transparent radicalism of this view, consider how brutally wrong she was. The Supreme Court voted 9–0 for the defendant, who was challenging the use of the treaty for the criminal prosecution. Not a single justice wrote or signed an opinion suggesting that the Constitution’s treaty power had changed. Indeed, the most liberal justices all signed onto Justice Roberts’ opinion, which (for all its other faults) recognized the important role that federalism plays in the distribution of powers between states and the federal government.

Think about that for a moment: Harris’s view was more radical than the combined forces of Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.

Harris’s interest in transforming the Constitution can sometimes be humorous. During a 2009 panel, after reshaping the Constitution into her own liberal likeness, she looked upon her creation and declared it good:

And I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am. Because I think the Constitution is a profoundly progressive document. . . . I think it’s a great document. And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book, it is something we can all be really proud of. That’s a separate question from whether social movements should concentrate all of their energies on the courts and on the Constitution—as opposed to political change through other avenues. And I think almost everybody would agree that social movements are well-advised not to limit themselves to the courts, not to only think about constitutional law, but also to be pursuing democratic processes, and looking for change, and trying to improve the situation that we have. But, you know, deep down, I’m just a huge fan of the Constitution.

Gee, I’m a huge fan of the Constitution too! That’s because of what the Constitution is, not because of how far it can be twisted to my fancy. But this point — that the Constitution is only good if it means what Harris wants — is really important to understanding her chilling strategic vision.

Remember that she thinks judges should interpret the Constitution as seen through social movements of various stripes. Laudably, Harris sees some role for, you know, democracy. But in this formulation, that nod seems somewhat circular: The courts should interpret the Constitution in accordance with social movements; social movements should try to get the courts to change the Constitution. In reality, this sounds like an attempt to bootstrap the Constitution into the service of Harris’s liberal politics, not interpretation of a legally binding document. Perhaps Harris can clarify. 

As far as judicial philosophy goes, though, Harris’s nomination must give the shivers to red-state Democrats like Mark Pryor, Mark Begich, and Mary Landrieu. By nominating Harris, the administration is forcing these politicians to vote on a radical nominee who not only thinks that previous generations of judicial activism didn’t go far enough, but also that judges should be amateur sociologists. That ideology is obviously designed to give Harris and other judges latitude to rubber-stamp the Obama agenda.

As such, any votes for Harris will be a dead giveaway that these vulnerable Democrats are not serious about opposing Obamacare, the EPA, or any of the other issues on which they claim to oppose him.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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