So, it’s all but official. Barack Obama is the Democratic Party’s nominee to be the next President of the United States. A Constitutional Obamination?

So, it’s all but official. Barack Obama is the Democratic Party’s nominee to be the next President of the United States.

While most of the ink being spilled and talk being aired is focused on what the political pundits -- as well as their followers in the mainstream media -- deem to be the crises of today (e.g., gas prices, housing downturn, economic collapse and Iraq), there has been hardly a mention of the all but certain fact that the next President will choose at least two, if not three or more, justices to sit on the U.S. Supreme Court.

The actuarial facts are that Justice John Paul Stevens is an octogenarian at 88 years old, and is followed by five colleagues who have all long-since passed Social Security’s retirement age -- namely, Justices Ruth Bader Ginsburg (75), Antonin Scalia (72), Anthony Kennedy (71), Stephen Breyer (69) and David Souter (68). Indeed, it’s no secret that multiple vacancies will open up in the next presidency.

Supreme Court practitioner and SCOTUSblog founder Thomas Goldstein certainly thinks so. More than a year ago, Goldstein authored a post explaining that the “next president … will have two appointments immediately (replacing Stevens and Souter, and there also is a very substantial prospect that a Democrat would quickly be in a position to appoint a third (replacing Ginsburg).” Goldstein then noted, “In fact, if a Democrat wins, there will be something of a race for the exits.”

So the question is: Who will be sitting behind that grand mahogany bench at One First Street in a year or two?

Quite frankly, it’s not nearly as interesting a question when it comes to Republican standard-bearer John McCain, as it is with respect to Democratic newcomer Barack Obama. After all, not only has nominee McCain repeated the conservative refrain that he believes judges should interpret the law rather than legislate from the bench, he has also updated another by saying he would appoint judges in the mold of Chief Justice John Roberts and Justice Samuel Alito.

Obama is of a different mind entirely. Indeed, so much so, that an Obama presidency would put voices on the High Court -- not to mention the other numerous federal courts from coast to coast -- that haven’t been heard since the days when it was not unusual to see bumper-stickers and billboards demanding “Impeach Warren” -- Chief Justice Earl Warren, that is. While it may be hard for Americans to believe that the “turn the page” presidential candidate actually wants to turn back the clock of Supreme Court decisions to the liberal judicial activism of the 1960s and 70s, take a look at what Obama has said and done on judicial nominations.

Notably, Obama not only voted against the confirmations of both Chief Justice Roberts and Justice Alito, but also commented as to why. Specifically, in voting against Chief Justice Roberts, Obama remarked, “what matters on the Supreme Court is those … cases that are truly difficult. In those cases, adherence to precedent … 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.” Thus, Obama said he believes, “in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

He didn’t stop there. He went on to explain just what political, social and economic views should be in every “judge’s heart” -- for example, that “affirmative action is an appropriate response to the history of discrimination in this country,” that “a general right of privacy encompasses a more specific right of women to control their reproductive decisions,” and that “a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled.” In fact, Obama said he rejected Chief Justice Roberts because, in Obama’s “personal estimation,” the current Chief Justice had “used his formidable skills on behalf of the strong in opposition to the weak.”

Obama said much the same when addressing Planned Parenthood Action Fund. Obama told that audience that, in “the cases that really count,” judges should “look at” what’s in their “heart … [w]hat’s their broader vision for what America should be.” So, according to Obama, “we need” judges who have “got the heart -- the empathy -- to recognize what it’ 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 criteria by which I’ll be selecting my judges.”

Based on that view, it is not surprising that Obama told CNN’s Wolf Blitzer a month ago that a judge should “bring in his or her own perspectives, his or her ethics, his or her moral bearings” in deciding cases.

All of this is to say, Obama might have been a law professor and might have taught constitutional law, but he sure doesn’t believe in the Constitution. After all, neither the Constitution nor any law that we know of says that judges should favor the weak over the strong, the poor over the rich, or the individual over the state.

Sometimes that may mean the prosecutor gets a conviction, other times the defendant should be acquitted. Sometimes that may mean the employer prevails, other times the employee should win. Sometimes that may mean the government gets to regulate, other times the market should be free. The rule of law in America isn’t that the underdog should always be given every advantage and every benefit of the doubt.

Nevertheless, Obama thinks so, which is why he has already proven his presidency would be a constitutional abomination.

June 5, 2008
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