Matthew Yglesias contends that I’m “completely misrepresenting what Obama is saying —[Obama]’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.” In other words, Yglesias contends that Obama’s 99% assertion is not about Supreme Court cases, but about the total federal docket.
Yglesias is mistaken. Apart from the fact that Obama’s comments in the MSNBC interview were expressly in the context of Supreme Court nominations, Obama has previously made crystal-clear that he’s talking about Supreme Court cases. (As I pointed out, he’s previously said 95% rather than 99%). From a CNN interview with Wolf Blitzer (which was in the post of mine that I linked to and which Yglesias evidently didn’t read):
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…
From Obama’s speech to the Planned Parenthood Action Fund:
[I]n the overwhelming number of Supreme Court decisions, [intellect is] enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time, Justice Ginsburg, Justice Thomas, Justice Scalia, they’re all gonna agree on the outcome.
But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.
Now, tell me again how it is that Obama isn’t simply lying.