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Why Obama Voted Against Roberts:

Today's WSJ reprints portions of then-Senator Obama's explanation for his vote against the confirmation of John Roberts to be Chief Justice.

rosetta's stones:
The "empathy" thing is sorta overdone by now , Adler.
6.2.2009 8:41am
Constantin:
Sure thing. How about he was running for president since the day he made his DNC speech and needed to appease the left of the left for the primaries.

That's a lot shorter, and a whole lot more honest.
6.2.2009 9:45am
DNL (mail):
I echo at Constantin said. I don't expect Obama to be transparent here, or at least expect him to rationalize his reasons. But let's face it: had Obama voted to confirm Roberts, Hillary would have crushed him in the primaries -- so he voted against confirming Roberts.
6.2.2009 9:49am
AndrewK (mail):
Isn't the person the judge votes for by definition "the strong?"

I guess my fundamental issue with the Obama-Sotomayor points is this: when we view the judge as, by definition, the fount of state coercion, what gives a judge the audacity (or ignorance) to claim that in ANY given case they are judging on behalf of the disenfranchised? The prevailing party is, by definition, the enfranchised party.

A second problem here: I see Obama trying to walk an unteneble jurisprudential tight-rope here, DEFINING the scope of the indeterminacy of law that he, as a realist, sees. You can't do that! Part of the indeterminacy the realist critique points out is not only due to a failure of the legal tools to exhaust the semantic universe, but also the failure of US to realize exactly HOW FAR this indeterminacy goes!
6.2.2009 9:52am
AndrewK (mail):
So my point is that the claim that "95%" of law is determined, and the remaining "5%" is identifiable, and Roberts acted wrongly in that sphere is doubly dubious.
6.2.2009 9:54am
Just an Observer:
Orin has quoted from the same passage. I have never taken the pure "empathy" concept seriously as an explanation for Obama's selection process.

However, the quote in the WSJ also includes a sentence that signals Obama's emphasis on a more tangible issue, affirmative action:

In his work in the White House and the Solicitor General's Office, [Roberts] seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process.


That issue, of course, will be front-and-center during the consideration of Sotomayor in the shadow of the Ricci case. As a matter of statutory interpretation, from what I understand so far, that case can reasonably be treated as a close judgment call between contervailing values codified by Congress.

What Obama seems to have been arguing during the Roberts confirmation is that it was okay to vote against a nominee whose judgment opposed the senator's view on the more general issue of affirmative action.

Unless one takes an absolutist view that only pro-affirmative-action opinions are reasonable for a jurist, it would seem that Republicans might apply the reverse principle in the case of Sotomayor. Her nomination may come to be a political proxy for the policy disagreement.

Overall, as an intellectual matter, I do think Obama's votes against Roberts and Alito place him in a shaky position today. However, given the political makeup of the Senate, I can't imagine Sotomayor's nomination is in serious trouble.
6.2.2009 10:07am
DiverDan (mail):
If Obama's floor speach appeared as a clue on Jeopardy, the only correct response would be "What is vapid rationalization, Alex?"
6.2.2009 10:07am
rick.felt:
If Obama's floor speach appeared as a clue on Jeopardy, the only correct response would be "What is vapid rationalization, Alex?"

No. Sean Connery would have buzzed in and answered "I Ba-rocked your O-mama last night, Tre-bek!"
6.2.2009 10:21am
rosetta's stones:
Goodness, I find myself nodding agreement with every sentence in JAO's post. I better go buy a lottery ticket!

Sotomayor's in, no doubt. I do recommend you lawyers now start working through a proper shortlist for the next nomination, however. I think process is key, and a list full of Sotomayor-level types brings confidence of a reasonable selection, by default. But a list peppered with Granholms is an insult to process, and thus the need to parse the shortlist process more thoroughly for this next selection (in 6-12 months? less?).
6.2.2009 10:26am
Just an Observer:
A little off-topic, but my assumptions above about the smoothness of this nomination process may be undone by a political rift on the right over strategy. See this piece in Politico: Right demands tougher fight on Sonia Sotomayor
6.2.2009 11:34am
Nunzio:
This was the reason I voted against Obama.

"I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided"
6.2.2009 12:45pm
Brent Peterson:
rick,

If Obama's floor speach appeared as a clue on Jeopardy, the only correct response would be "What is vapid rationalization, Alex?"

No. Sean Connery would have buzzed in and answered "I Ba-rocked your O-mama last night, Tre-bek!"

Well done, laddie.
6.2.2009 12:53pm
Snaphappy:
AndrewK, I believe that your question was definitively decided in the case of In re Double Slit Experiment, though frankly, the closer I read that opinion, the more obscure it becomes.
6.2.2009 12:56pm
MLS:
Since Ted Olson is now linked with David Boies in a suit challenging Proposition 8 in California, and since Ted Olson did represent the USG as SG, does this indicate that Olson is no longer on the "darkside" of the law and would now pass Obama's litmus test re "empathy"?
6.2.2009 2:13pm
The Cabbage (mail):
I always figured that his argument, especially the 5%-bit, was written with an ear for how it would sound re-read by Nina Totenberg on NPR.
6.2.2009 2:55pm
Brian G (mail) (www):
Using Chairman Obama's same rationale, think of it like this:

O: "Mom, I met this girl. She was Miss Hawaii in 2000, has a PhD in Romance Languages, and is an up and coming professor at Stanford. Her parents has been married for 40 years, she is very close to them and her brothers and sisters, and from the way she is with her nieces and nephews there is no doubt she will make a terrific mother. She is very loyal to me, does everything for me, and tells me she loves me 10 times a day."

Mom: "Great! When am I going to meet her and when are you going to ask her to marry you?"

O: "Mom, I dumped her. I want to see how my relationship with that woman doing the 10-to-15 year stretch at the state pen goes first. She is getting released soon, in 2016, and I think we'll really have something."
6.2.2009 6:45pm
Alan K. Henderson (mail) (www):
Looks like I'm not the only one who thought of this in conjunction with the Souter opening:
I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupé. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job. My job is to play the game according to the rules.”

Judge Learned Hand (“Do Justice!”: Variations of a Thrice-Told Tale)
6.3.2009 12:18am
H2:
I agree with and am adding on a bit more to JAO's post.

...it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process.BO

Because siding with "those who were dismissive of efforts to eradicate the remnants of racial discrimination" (siding with people who do not agree with affirmative action)
= automatically siding with "the strong in opposition to the weak"?

This reveals even more about Obama's viewpoint.

Those that are against AA could not possibly be thinking about the weak/minorities.
What about those that think AA unfairly stigmatizes all minorities by making their accomplishments suspect?
6.3.2009 3:55am

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