Funny, I thought the rule of a SC Justice was to interpret the Constitution, not act as some type of moral fairness cop.

Wow. Just wow. And this guy went to Harvard Law?

This is one of the most twisted misconceptions of a Judge's role that I've ever seen. Watch out for Earl Warren's reanimated and augmented corpse, coming to make a mockery of a courthouse near you.

It's good to see that Obama realizes the Supreme Court is a mixture of "Backup Legislature if you got beat in the Congress" and "Service Provider for people with gripes" and not some kind of court.

GMUSL:

You know, everyone talks about and hates on Earl Warren, but if it's a choice between that and the reanimated corpse of William Brennan, I'll take Warren ten times out of ten.

I'm always shocked by how many law school graduates see the Supreme Court's role as exactly what Obama said. I can't dispute that that might be ONE of the Court's roles under a limited set of circumstances... but the ONLY role? Or even one of the top three? I think not.


Compare the above comment with the actual post:

And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout.


He doesn't say it's the sole role of the Court or even the primary role.

Funny, I thought the rule of a SC Justice was to interpret the Constitution, not act as some type of moral fairness cop.

The Bill of Rights exists precisely to protect individuals and small groups from a democratic majority. If your position is already the popular, majority held position you don't need the Bill of Rights to protect it because the legislature isn't going to vote to prohibit it. So stating that a Supreme Court judge ought to have that purpose in mind is neither surprising nor new.

He apparently made similar comments at a Planned Parenthood event. It is clear that he does not put a premium on the rule of law:

Speaking at the Planned Parenthood conference in DC this afternoon, Barack Obama leveled harsh words at conservative Supreme Court justices, and he offered his own intention to appoint justices with "empathy." Obama hinted that the court's recent decision in Gonzales v. Carhart — which upheld a ban on partial-birth abortion — was part of "a concerted effort to steadily roll back" access to abortions. And he ridiculed Justice Anthony Kennedy, who wrote that case's majority opinion. "Justice Kennedy knows many things," he declared, "but my understanding is that he does not know how to be a doctor."



Apparently "empathy" for the partially born does not count.

A lot of this i inevitably political, and I can't understand people who seem to think that "strict construction" has inherent meaning.

A law prohibits some conduct, but doesn't discuss remedies. Is there a private right to bring an action in federal court, or only a right by the Department of Justice to bring a criminal claim?

A law has a short statute of limitations, and the plaintiff claims seven discriminatory events stretching back years. Is there an "ongoing violation" or a seven independent event (six of which happened before the statutory period)?

These questions don't answer themselves, and require an examination of the likely results of each decision. Sometimes, you have to get your head out of a law book, though, to recognize this.

Conellian--

Majorities don't need the protection of the Bill of Rights? Perhaps not from encroachment via democratic process, but what about encroachment on their constitutional rights by the courts? How do you explain affirmative action?

I don't want a justice system based upon biblical teachings either.

All of the statues of justice show a blindfolded woman. Obama seems to say that we should judge people according to who they are rather than what they have done.

Oh yeah, absolutely -- people who don't agree that the Supreme Court should categorically eschew considerations of fairness in interpreting terms like 'equal protection' or 'due process' or 'just compensation' or 'excessive bail' or 'cruel and unusual punishment' are, like, totally twisted.

And I quite agree that there's a nontrivial possibility that Obama is actually against the rule of law.

As detailed here, Adrian Vermeule has made an interesting set of arguments that we should have at least one "lay Justice" -- i.e., a Justice who is not a lawyer. Against that backdrop, the Obama comment seems quite mainstream.

More generally, as detailed in this post, a lot of historically great Justices (acorss all the traditional spectrums) have come from outside the circuit courts and the academy. And, notably, the Supreme Court has traditionally been our most diverse federal branch (compared to the president/VP and the Senate).

Cornellian -

I was zinging the people I know, not Obama directly. But they are his constituency, and in some cases his activists. He's obviously playing to them.

I would be interested to hear his views on other roles for the Supreme Court, and how he views their relative importance. Somehow I don't think I will.

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 criteria by which I'm going to be selecting my judges.

So... how about Janice Rogers Brown? ;)

doesn't that idiot obama know that the constitution's meaning is capable of being objectively determined and fixed at a given point of time. doesn't he know that arbitrary, result-oriented indicia of legitimacy rule the day? doesn't he understand that this sort of nonsense drives us from the platonic ideal of civic discourse involving the judiciary, which now centers around strict constructionist.

for the love of god barry, please get a clue! speak in the favored idiom of george mason!

Of course this is Obama's view. This is exactly the kind of stuff I'd expect a person to say who was only a decade removed from being no more than a community organizer. The last thing we need is more social workers on the bench. So long as "protecting vulnerable people" does not extend to rocks, trees and squirrels, Obama's nominee will be marginally better than Justice Douglas.

Of course, the 7 justices who joined the opinion in the case of that handicapped golfer vs. the PGA reveal the strong appeal of stretching the law in order to be perceived as compassionate, and none of those justices is a total fruitcake like the court used to have. It happens from time to time that the Court does this, whereupon Scalia will write an amusing dissent recounting the parade of horribles that would follow if the logic of the decision were ever applied to anything else, and (because all the "compassionate" justices are perfectly aware of that fact) the decision gets quietly tucked away and never mentioned again.

If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court.

People with "life experience" who feel screwed by the system are common in the prison population. Perhaps what the Supreme Court really needs is Suge Knight. Or, if he's not confirmable, this list might be a good backup pool.

I'd hate to see a "lay justice" deal with all of the ERISA, AEDPA, IDEA, Title VII, RFRA, tax, and other statutory cases on the docket. Perhaps the "lay justice" should be recused from every case that's decided before June.

The first question to ask is, did Obama in fact teach constitutional law for ten years? I don't think so.

Personally, I've been wondering whether he's actually a senator. How much do we really know about the guy?

I still don't understand why it's bad to have someone on the Court who has "the heart, the empathy ***... selecting my judges."

Obviously that won't be the only criteria by which he would select judges—so why is it so offensive to the VC that these factors be included in the calculus?

All: Please forgive my unconscionable typos and punctuation errors above. Extreme fatigue is inhibiting my ability to express myself clearly.

Guesty: I think the objection comes down to this - when Obama (or any left-of-center politico) uses this term, it's code for a certain mental disposition. Do you really think that when he says he'll look for folks with empathy, that Obama means empathy toward the small business owner struggling to get his business off the ground, the rural landowner struggling to comply with EPA regulations while putting food on the table for his family, or the urban landowner fighting against a local government seeking to condemn her house? Do you think he means empathy toward the unborn, toward school boards that attempt to create space for their religious students to express themselves, toward church groups who want to make hiring and firing decisions based on their religious convictions? If you do, can I get some of what you're having, because it's got to high quality to foster that kind of delusion...

Guesty,

For the record, I absolutely and strongly agree with Obama that a judge should have "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." The real question is what the judge should do upon realizing this. I think it is correct and necessary for a judge to factor this into his decision where the law calls on the judge to do so; the question is whether a judge should factor this into his decision where the law does not call on him to do so.

Orin, did you get the sense that Obama's comments implied that a Judge should look to fairness when the law does not call on him to do so?

Perhaps I am reading too much into it, but my biggest problem with Obama's quote(s) is the implicit assumption that somehow the justices currently on the Court lack the capacity to "empathize" with the great unwashed.

What is this based on?

I thought the question was whether a judge was required to CHANGE the law on behalf of the downtrodden. If it's a matter of justice under current law in a particular case, I have no problem with it. Same if there's a very straightforward constitutional argument, which in my mind does not include penumbras.

A lot of lawyers have this huge mental overhang from the civil rights cases. Those were important, but they seem to have created a major bias in favor of (1) judicial action on social issues, (2) at the federal level, (3) on the presumption that the country can never be persuaded to do anything innovative on the legislative side. Any one of these elements in the bias may be problematic with regard to a given issue, and I think it's fairly rare for all three to be pulling in favor of Supreme Court activism. The civil rights cases therefore strike me as the exception, not the rule.

The problem is that Obama seems to suggest that he would select judges who have "empathy" for only certain categories of litigants that he apparently favors. The suggestion is that he thinks that this will influence judicial outcomes (otherwise, why say it--if I am wrong, his statements constitute meaningless political rhetoric, but I will not attribute such motives to Senator Obama--I think he means what he says). I think it is fair to say that this constitutes a failure to put a "premium" on the rule of law. Basing decisions on the identity of the litigants (even in part) rather than the merits of the case undermines ideal of equality before the law and thus the rule of law itself. If Senator Obama's friend Oprah and his friend Ted Kennedy have a contract dispute, I would not expect a judge to base his/her decision on "empathy" for Oprah because she is an African-American woman who has overcome a lot in her life, whereas Kennedy is not a member of a minority group and had a privileged upbringing. I would expect the judge to try to interpret the contract in accordance with the intentions of the parties and try to arrive at a correct outcome. I expect that is what most Americans think judges do and should do. I also believe that is what many judges appointed by prior Democratic presidents try to do and believe they are obligated to do. There is nothing in Obama's statement that suggests that this is what he is looking for. He mentions only "empathizing" with certain groups he apparently favors. It is as if a Republican sought judges who would "empathize" with the plight of the unborn, crime victims, victims of excessive government regulation, taxation, or racial preferences. That kind of judicial bias in favor of certain litigants seems to be Obama's primary judicial selection criterion. Moreover, it is no answer to say that judges have discretion to decide certain issues: to say judges may exercise discretion is not to say that they have discretion to base their decisions (even in part) on the identity of the litigants and to favor certain litigants based on their age, race, physical abilities, or sexual preferences.

Maybe Orin can give us an example of a situation in which the law calls on a judge to "factor into his decision" the identity of the parties--It is hard for me to think of a context in which the law calls for a judge to favor a litigant because of their race, gender, sexual preference etc... The comments seem to be contemplating civil rights lawsuits or something along those lines, but I am unaware of any principle of law that says judges must always favor or bias their decisions in favor of civil rights plaintiffs based on "empathy" for them. And what if the civil rights plaintiff is a white male--Obama would seem to contemplate no "empathy" there. Along the same lines, what if the defendant and plaintiff in the lawsuit are members of Obama's favored groups--how does the "empathy" principle apply there?

Again, if "empathizing" with certain litigants or "factoring in" their identity does not mean favoring them or basing judicial outcomes on the identity of the litigants, then Obama's statement is meaningless (i.e., I don't think he is saying that he wants judges who will sympathize with these favored groups who come before them in court and not do anything about it--i.e., I don't think he is trying to give brownie points to "good people").

Orin,

I don't think Obama is as ideologically driven as Justice Douglas was. I imagine Obama appointing someone more along the lines of a Justice Breyer (except without the mid-Atlantic lilt). I think Obama would be interested in Justices who understand the advantages of an engaged government but whose decisions might be influenced by their own personal interactions with government.

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 criteria by which I'm going to be selecting my judges.

Am I the only person thinking, "Hmmm, except for the gay part, he sounds like he's describing Clarence Thomas."

Joe Gator,

Perhaps I am reading too much into it, but my biggest problem with Obama's quote(s) is the implicit assumption that somehow the justices currently on the Court lack the capacity to "empathize" with the great unwashed.

What is this based on?

Most likely that Supreme Court Justices are far removed from the "everyday life" that most of us experience.
For the Supreme Court's view of cars, see Wyoming v. Houghton, Cardwell v. Lewis (people don't keep their personal belongings in cars), and Maryland v. Wilson (passengers and drivers are often in criminal cahoots).

Obama's campaign rhetoric is worth its weight in air.
Anyone he nominates will have to be able to pass a Republican filibuster.

I guess that means that once a Democrat is in the White House the Republicans will have forgotten about their prior insistence that a judicial filibuster is unconstitutional and that every nominee is entitled to an up or down vote.

Am I the only person thinking, "Hmmm, except for the gay part, he sounds like he's describing Clarence Thomas."


I guess you could regard Clarence Thomas as old but I didn't know he was disabled.

"you vote on the opposite side from John Roberts in every single case where that's warranted"

I have no problem with that. But then, I don't think there are any cases where voting on the opposite side from Chief Justice Roberts is warranted.

Good thread. Nice pick, Orin.

Cornellian,

The Bill of Rights exists precisely to protect individuals and small groups from a democratic majority. If your position is already the popular, majority held position you don't need the Bill of Rights to protect it because the legislature isn't going to vote to prohibit it.

Give that ACLU Bill of Rights crap a rest. We're talking about the Constitution!
;>)

"This person" being Obama - in my fatigue, I somehow transposed that statement with the one made by one of Emily Bazelon's staff members. Mea culpa.

"Is that really true? He certainly wasn't an actual professor; you can't make it as a full-time Chicago law prof for 10 years with no legal publications. So at most he was an adjunct. Now did Chicago really have a need for an adjunct to teach Con Law? It's not as if they're hurting for great Con Law professors there."

He was a senior lecturer, a position usually reserved for a small number of instructors (such as Judges Easterbrook, Posner and Wood) who, because of other professional obligations, cannot commit to an ordinary professorship. He was reportedly offered tenure on several occasions, and declined.

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 criteria by which I'm going to be selecting my judges.

It's the James Watt theory of jurisprudence.

"No serious liberal thinker, as far as I know, contends that judges should regularly ignore the law whenever they think it is unfair. You’re setting up a straw man."

That is not a straw man, it is plain as day. Liberals believe that white men (and men in general) should be punished, that big corporations are evil, that the unborn aren't even human, that victims are always to be preferred (unless they're criminal victims, in which case the criminals should be preferred), that the government should always economically prevail against an individual, and that Europe is better than America.

Liberals want judges to rule based on those preferences. Yes, in a plain vanilla contract dispute between a man and a woman, they want the woman to win. In a plain vanilla contract dispute between a minority and a white man, they want the minority to win. Look at the media coverage, and the reaction of liberal Democrat senators, to judges who ruled in plain vanilla cases against women &minorities, and who were subsequently nominated to higher benches by President Bush? They were unfairly demonized for being racists and sexists.

Liberals always want their hands on the scale.

He was a senior lecturer, a position usually reserved for a small number of instructors (such as Judges Easterbrook, Posner and Wood) who, because of other professional obligations, cannot commit to an ordinary professorship. He was reportedly offered tenure on several occasions, and declined.

Sorry, but this seems to be BS. Someone who never published anything — not even when a member of the Harvard Law Review, when he was guaranteed two publication slots — was offered tenure at Chicago? No way. Do you have any evidence that this is actually true?

Mary Katherine Day-Petrano clearly shuld be apointed to the seat which shal hereafter be reserved for the autistic-american. As a percentage of the population,it clearly warrants one of the twelve seats in perpetuity.

THe more important issues, which every one of the MSM is dying to ask, is willl there be a litmus test for empathy with the young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. Because we all know, as the Democratic senators have tols us time and again, there is nothing worse than a litmus test.

Well played, theobromophile. I must have FDR on my mind tonight.

And clearly, the innumerate require 120% of the court.

Orin -- do you know what specific course Obama actually taught? Again, I have my doubts that a law school with David Currie, Cass Sunstein, Richard Epstein, Dennis Hutchinson, Geoff Stone, etc., would need an adjunct to teach Con Law (of all courses), let alone for a ten year period. Maybe it's true, but I'd like to see some real evidence.

Re: Obama teaching constutional law for ten years.
I think that statement is accurate even if he didn't teach Con Law lecture for 1Ls, but taught courses in topics in constituional law.
I think that's what Obama actually did: see link from statement on vote against Roberts, where he says he "for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law."

What he is saying is, that he would appoint people like Cornellian. Good enough reason to oppose him.

I find odd the notion that attending three years of law school qualifies you to interpret ERISA or RFRA or AEDPA.

I got pretty good grades at Harvard Law and I don't know jack about the above. I don't even know what AEDPA stands for without checking wikipedia!

I don't think the skill of using logic and care to read a text and figure out its meaning is something that can be imparted through formal training. It's just something you develop through practice. A non-lawyer can develop that just as well as someone who sat through 6 semesters of law classes.

Obama is a minority-communtiy-activist turned Democrat-political-hack (albeit an impressively talented one), from Daleytown USA. If there are any lingering doubts about what his statements "really" mean, I will translate. Obama's ideal SCOTUS justice will: "Comfort the afflicted, and afflict the comfortable". He would NOT be where he is today if he believed otherwise. Get real people.

What he is saying is, that he would appoint people like Cornellian. Good enough reason to oppose him.

I doubt I'd qualify as having the necessary empathy, and I thought Roberts was a good appointment, so I don't think I'm on Obama's short list of nominees. But nor do I think he's way out there for saying he'd like his judicial nominees to have empathy.

This is a Cass Sunstein blog post which states that "he's [Obama's] a terrific teacher, and we tried to convince him to join the faculty full time on several occasions." Hopefully, Prof. Sunstein's claim that Barack Obama was a lecturer at Chicago will assuage your concerns.

Gosh, I would see Obama's nomination of Cornellian or people like him as a plus.

I guess that means that once a Democrat is in the White House the Republicans will have forgotten about their prior insistence that a judicial filibuster is unconstitutional and that every nominee is entitled to an up or down vote.

Nah. It just means that they'll have finally been persuaded by Democrats' words and actions that judicial filibusters are legitimate. It's bipartisanship, see?

LM: "If that's your opinion of liberals, why would you even want to live in a country where as of now liberals are preferred over conservatives?"

Upon deconstruction, what a curious question. I don't think anyone "wants" to live in such a country, do you? Don't you really mean "why don't you leave America if you are so unhappy?"

And the answer to that question is "because America is my homeland, and Americans my people. Why would I want to live in galut?"