Obama's Supreme Court Criteria

Republicans learned a hard lesson during the confirmation process of both Robert Bork and Justice Clarence Thomas. The Judicial Confirmation Network (JCN) was formed in 2004 to ensure judicial nominees of then President George W. Bush would get a fair hearing in the Senate and that the American public would get the truth about the nominees.

Wendy Long, general counsel to the JCN and a former Supreme Court clerk to Justice Thomas sat down with HUMAN EVENTS to discuss the current makeup of the court and some of the likely Obama candidates to replace Justice David Souter, who has announced his retirement in June.

: Let’s talk a bit about the liberal activism of our current Supreme Court.

WENDY LONG: It’s very telling that President Obama and far-left interest groups that he is listening to characterize the current Supreme Court as a conservative court. That’s really inaccurate. The current Supreme Court is still a majority liberal activist Supreme Court. In most of the important 5-4 constitutional rulings, that court is still coming down on the side of liberal judicial activism, or in some cases it’s liberal judicial passivism. I’ll give you a couple of examples: recent 5-4 majority decisions giving enemy combatants at Guantanamo the same habeas corpus rights as U.S. citizens; forbidding U.S. citizens from making the death penalty available as a punishment for criminals convicted of child rape; dictating climate change policymaking at the EPA; saying that the Ten Commandments have to be taken down from a public posting, generally trying to drive religion out of the public square. These are all examples of how the liberal activist majority still has the upper hand in many critical constitutional cases in the Supreme Court. It is not a conservative court or a court that observes judicial restraint by any stretch of the imagination. In fact, the current court is already to the left of the American public, and I think that President Obama would only like to make it more so.

HE: When President Obama speaks about nominating a justice who has a great deal of empathy for people and one who identifies with their hopes — that actually runs counter to what the Founders had intended?

LONG: It does. What President Obama is really saying is that he wants judges to bring a political agenda to the bench and effectively legislate from the bench. He wants judges to tilt the law to favor certain groups and certain causes based upon the judge’s own personal feelings and personal views and personal politics. Of course, judges should not be tilting the law at all because of their own personal feeling. And judges who do it are violating their oath to dispense justice blindly and impartially. I think Americans would much prefer their judicial cases to be decided evenhandedly. It’s the reason Lady Justice is blindfolded. A judge has to put their particular feelings and political views aside and dispense justice equally to everyone. Equal freedom of religion, freedom of speech, property rights, make sure that none of us are judged by the color of our skin or our sex, and make sure that we’re a country that doesn’t have racial quotas and so on. What the President is really saying is the opposite of that.

HE: The President actually said in an interview several years ago that he didn’t think that the very activist Warren Court had gone far enough in dispensing “economic justice.”

: I think it’s consistent with what we’ve heard him say about the court calling it a conservative court. I think he’d really like to march this court to the left and not only turn back the clock to the liberalism of the Warren Court but even go farther than the Warren Court and begin implementing a real, leftist political agenda from the bench not only on some of these social issues, on purging religion from the public square. And it’s likely that any justice he would appoint would be a vote to find a supposed entitlement to same sex marriage in the Constitution — which, of course, isn’t anywhere in the Constitution — but to continue marching the court to the left and to break new ground possibly on the kind of issues he identified that you’re referring to on so-called economic justice.

Everyone should have the law applied to him equally. That’s why justices take an oath to dispense justice equally to rich and poor. When you say a justice should actually be tilting the law in favor of certain people and certain causes, you can’t help but think that maybe he would want justices to use the high bench to engage in the kind of economic redistribution or justice that he seemed to be referring to.

HE: President Obama lamented that the Constitution is a negative representation of law that merely limits what the state can do; he would prefer that it enumerate what the state must do.

LONG: The Framers set up the Constitution so that we’d have freedom really so that people could make their own laws and their own government. That’s why we were supposed to be and have been for most of the last two centuries a system of self-government. Our laws are all supposed to derive from the consent of the governed. That’s why the Constitution set up these parameters so that people can govern themselves. That’s what we were speaking of earlier when we said that the court is not a representative body. The other two branches are accountable to the people. The Constitution just sets up the framework for that and gives the really basic guarantees of what the legislature cannot do.

It seems like President Obama, consistent with the recent history of the liberal judicial activism, wants to use the court as a kind of super-legislature to give out certain things to the people and to guarantee that the people have certain things whether they vote for them in their legislatures or not. That’s really turning the whole idea of the Constitution and self-government and our very freedom on their head.

HE: How does it affect our ability to self-govern when justices cite foreign law in their Supreme Court decisions?

LONG: The U.S. Constitution, as our supreme law, was agreed to by the Founders, and all our laws ever since have been agreed to by majorities in our representative democracy. This is the only basis for their legitimacy, and the reason that the Supreme Court looks to them in deciding cases arising under our country’s own laws.

But when the majority of liberal activist justices on the Supreme Court rely on foreign law, or as they sometimes vaguely say, “international opinion,” they are using a lawless standard and destroying self-government, by essentially deciding whatever they want and then grabbing some foreign, international standard as a justification for their liberal activist outcome.

One example of this is the Court’s 2005 decision in Roper v. Simmons, in which a majority of five liberal activists on the Supreme Court held that it violates the Eighth Amendment to execute a murderer who was 17 at the time he did his killing. The defendant, Simmons, actually planned the particularly heinous murder and told his friends he could “get away with it” because he was only 17. There was nothing in our own laws and Constitution that says a 17-year-old murderer cannot get the death penalty, but the Supreme Court, by a vote of 5 to 4, said that “international opinion” should be read into our Constitution to make such executions unconstitutional.

Another example is Lawrence v. Texas, where the liberal activist majority on the Court in 2003 used foreign law to strike down a Texas statute prohibiting homosexual sodomy, because they reasoned that such conduct is viewed in other countries as an “integral part of human freedom.” When the Court does this, it assaults the constitutional structure of self-government and the rule of law and just gives free rein to liberal activist judges to make the rules for the rest of us, based upon their own personal views.

HE: There have been three women mentioned as the likely short list nominees.

LONG: There is tremendous pressure on the President, I think, to choose a woman. I saw one woman’s group [Friday] in fact that demanded the President choose a woman because women aren’t well represented enough on the court. The whole idea is just so contrary to what a justice is supposed to be and what our system is supposed to be that based upon your race or your sex you need representation on the court. That just feeds into this whole idea that justices are deciding cases based upon whose side they are on instead of putting aside all of their own personal views and characteristics and just deciding cases based on the law.

: Let’s take the three women one at a time. Elena Kagan?

: She’s currently the Obama Solicitor General, and 31 Republicans voted against her for that job just over a month ago, largely because she has a very left-wing activist record and she refused to answer questions from Senators, after herself writing publicly that the thought Senate hearings where judicial nominees don’t answer such questions make a mockery of the process. She went right ahead and made a mockery of the process. To give you an indication of her liberal zealousness, as Harvard Law School Dean she kicked U.S. military recruiters off the Harvard campus because she thought that the U.S. military policy of “don’t ask, don’t tell” passed by a Democratic Congress and signed by President Clinton, forbidding openly gay members of the military was “a profound wrong and a moral injustice of the first order.” She has zero judicial experience, has never argued a case at trial or argued before the Supreme Court. But her academic record of extreme liberalism is obviously attractive to President Obama.

HE: Diane Wood?

: She’s a judge on the U.S Court of Appeals for the Seventh Circuit, in Chicago. Another well-known liberal judicial activist who will twist the law to suit outcomes favored by the ACLU and liberal groups. She was reversed twice by the Supreme Court, for example, for her opinions applying RICO — a statute written by Congress to aid in mob prosecutions — to prevent pro-life activists from engaging in peaceful civil demonstrations. She’s shown a consistent hostility to the religious freedoms guaranteed by the Constitution, for example, voting to allow a public university to remove the student charter of the Christian Legal Society on campus because it declined membership to homosexuals. And she wrote an opinion saying that prisons can’t require inmates to participate in drug rehab programs that have “explicit religious content.”

HE: Sonya Sotomayor?

: She’s a judge on the U.S. Court of Appeals for the Second Circuit, in New York. She’s widely thought to be attractive to Obama because she’s a well-known judicial activist, and she’s not only a woman but would be the first Hispanic Supreme Court Justice. Sort of two for one, if you think that things like race and sex and ethnicity are of any relevance at all for being a good judge. Sotomayor shares Obama’s philosophy that judges should tilt the law based on their own personal views, saying it’s appropriate for a judge to consider their own views and experiences as “women and people of color.” She recently was taken to task by fellow Second Circuit Judge and Clinton appointee, Jose Cabranes, for essentially trying to throw out the claims of New Haven firefighters in a [reverse discrimination] racial preference case. The case raised really important questions about discrimination and racial preferences, which she tried to bury. But the Supreme Court is reviewing the case and just heard argument in it last week. She also has a reputation for having a questionable legal temperament, and is described by lawyers practicing before her as a bully, who abuses lawyers with inappropriate outbursts.