Published March 17, 2008
Justice John Paul Stevens turns 88 in April, and by January 2009 five other justices will be from 69 to 75 years old. If Barack Obama is elected president, he will probably–with the benefit of resignations by liberal justices eager for him to be the president who chooses their successors–have the opportunity to appoint two or three Supreme Court justices in his first term, with another two or three in a potential second term. That prospect ought to focus the attention of all Americans who want a Supreme Court that practices judicial restraint and respects the proper realm of representative government. For Obama, if elected, would certainly aim to fill the Supreme Court–and the lower federal courts–with liberal judicial activists.
Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the “truly difficult” cases requires resort to “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 short, “the critical ingredient is supplied by what is in the judge's heart.” No clearer prescription for lawless judicial activism is possible.
Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: “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.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.
In his short time in the Senate, Obama has voted against a half-dozen federal appellate-court nominees. Most tellingly, he was the first senator to join in the left's mendacious attack in 2007 on Fifth Circuit nominee Leslie Southwick–an attack that managed to drag the judicial-confirmation process to a new low. Southwick had been widely regarded as a consensus pick. The ABA's judicial-evaluations committee, after an investigation that included the usual inquiry into whether the nominee has “freedom from bias and commitment to equal justice under the law,” unanimously gave him its highest “well qualified” rating. The Democrats on the Senate Judiciary Committee had, just months before, unanimously approved his nomination to a federal district judgeship.
Nevertheless, when left-wing activist groups launched their attack on Southwick, Obama jumped right in. Relying on gross misrepresentations of Southwick's record, Obama recklessly alleged that Southwick “has shown hostility towards civil rights and a disregard for equal rights for minorities, women, gays and lesbians” and that his nomination even “threaten[ed] the very basis of our freedom and democracy.” Fortunately, some Democratic senators–most prominently, Judiciary Committee member Dianne Feinstein–had the courage to stand up against these lies from Obama and others, and Southwick was ultimately confirmed.
Obama's constitutional activism is particularly evident on the touchstone issue of Roe v. Wade. Obama calls abortion “one of the most fundamental rights we possess” and promises to “make preserving women's rights under Roe v. Wade a priority as president.” He has harshly criticized the Court's 2007 ruling that the federal partial-birth abortion act (which was supported by broad bipartisan majorities in Congress, including abortion supporters like Senate Judiciary Committee chairman Patrick Leahy) is constitutionally permissible.
Obama often cloaks such extreme positions in sweet-sounding rhetoric. His chapter on “Our Constitution” in his campaign manifesto, The Audacity of Hope, provides a useful case study. There, Obama characterizes his own understanding of the Constitution in positively unctuous terms: “I confess that there is a fundamental humility to this reading of the Constitution and our democratic process.” But there is nothing humble about the judicial role that Obama embraces.
Obama purports to be “not unsympathetic to Justice Antonin Scalia's position” that the “original understanding [of the Constitution] must be followed,” but he won't even present Scalia's views accurately. Let's set aside the fact, all too common among liberal critics, that Obama doesn't keep straight the distinction between Scalia's original-meaning species of originalism, which looks to the public meaning of a constitutional provision at the time that it was adopted, and the original-understanding species, which looks to the contemporaneous understanding of the ratifiers. Obama claims to
appreciate the temptation on the part of Justice Scalia and others to assume our democracy should be treated as fixed and unwavering; the fundamentalist faith that if the original understanding of the Constitution is followed without question or deviation, and if we remain true to the rules that the Founders set forth, as they intended, then we will be rewarded and all good will flow.
But Obama's “fundamentalist” name-calling is misplaced. Originalists understand the Constitution–not “our democracy”–to be “fixed and unwavering” (apart from the amendment process it provides, of course). They recognize that, precisely because the Constitution leaves the broad bulk of policy decisions to legislators in Congress and in the states, there is lots of room to pursue and adapt different courses through the democratic processes. No originalist believes that judicial respect for the operations of representative government will guarantee that “we will be rewarded and all good will flow.” This is a straw man. The virtue of originalism lies foremost in protecting the democratic decisionmaking authority that the Constitution provides. Our legislators will be sure to mess up plenty, but at least citizens will have the ability to influence them–and replace them.
Obama finds himself compelled “to side with Justice Breyer's view of the Constitution–that it is not a static but rather a living document, and must be read in the context of an ever-changing world.” But no one disputes that the Constitution “must be read,” and applied, “in the context of an ever-changing world.” The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution's meaning willy-nilly–in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a “living” Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, “the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.”
And so on for all of Obama's other deceptive rhetoric in his chapter on “Our Constitution” in The Audacity of Hope, including his galling claim to be “left then with Lincoln” in their supposed common understanding of the Constitution. On judicial nominations, Obama brazenly contends that “Democrats used the filibuster sparingly in George Bush's first term: Of the President's two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote.” What Obama's casting conveniently obscures fro
m the trusting reader is that these filibusters were unprecedented in the history of the Senate. Obama even pretends that it's obvious that Republicans would resort to the filibuster “if the situations were reversed.” But the best evidence refutes Obama: There were only four votes on cloture–on proceeding to a final vote on confirmation–on judicial nominations during the Clinton administration. All four were supported by Republican leadership, and none received more than 14 negative votes from Republican senators.
In the end, an examination of Obama's record and rhetoric discloses the stuff he is made of–his own constitution. Beneath the congeniality and charisma lies a leftist partisan who will readily resort to sly deceptions to advance his agenda of liberal judicial activism. Given the likelihood of so many changes in the membership of the Supreme Court over the next eight years, it is particularly important that voters this November recognize the real Obama.
— Edward Whelan, president of the Ethics and Public Policy Center, is a regular contributor to National Review Online's Bench Memos blog. His views are his own only.