Bench Memos

Re: Still More on Obama’s [Non-]Conversion

At the risk of exhausting the patience of readers, Gerry, I think that we are disagreeing.  You somehow see a grand victory in Obama’s patently false declaration that “Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.”  As I discussed here, I see a deliberate deception meant to mask the scope of the damage that would result from Obama’s liberal judicial activist picks to the Supreme Court. 

 

You want us to leave the next move to Obama.  I have no idea what that means.  There’s nothing new about Obama’s claim.  Obama made the same claim in his September 2005 remarks explaining his decision to vote against the confirmation of John Roberts: 

 

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

 

What sort of a victory was that?  What further move are we awaiting? 

 

I’m also at a loss as to how you think that I might be “scrambl[ing] legal conservatism.”  What will most damage legal conservatism is the election of a President Obama.  Imagining that Obama is on our team is one way to help achieve that result.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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