Fretting About Obama's Judges

Steven Calabresi can't believe readers will take this Wall Street Journal opinion piece seriously ... can he?

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

If only. Did Democrats block the nomination of William Pryor or Priscilla Owen or Janice Rogers Brown? Spare me.

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The president's ability to radicalize the courts with right wing ideologues was hampered in the last two years, but the damage had already been done. Let's not even talk about Justices Alito and Roberts. The Senate confirmed more than 300 of President Bush's lower court nominees. A 2006 study found that Bush's judges "are the most conservative on record when it comes to civil rights and liberties."

That should be good enough for Calabresi and his fellow Federalist Society activists. In fact, given that Republican presidents have selected judges for 20 of the last 28 years, Calabresi and his Federalist chums should be downright giddy. Not so. Calabresi sees a dire future in which the courts become more balanced. Starting with the Court of Appeals for the District of Columbia:

If Barack Obama wins the presidency, he will almost certainly fill ... two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well. The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

So it will take the retirement of six sitting judges during the Obama presidency for the majority of the circuit's judges to change from Republican-appointed to Democrat-appointed. Unfortunately for the nation, that won't happen overnight if it happens at all. Calabresi can rest easy for now.

Calabresi thinks "the balance will shift" in the "First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal." Let's hope so, but again, that won't happen quickly. It's not as if Republican-appointed judges are eager to retire when a Democrat is in office. Most conservative judges will hang on to their power as long as they can.

Calabresi worries that Obama will nominate judges who have empathy for individuals. The current crop of conservative judges have empathy for large corporations and little regard for the employees who serve them. Calabresi seems to fear judges who (in Obama's words) "understand what it's like to be poor, or African-American, or gay, or disabled, or old." Shouldn't concern for the most easily victimized members of society be a job qualification for federal judges?

As Federalist Society members like to do, Calabresi distorts the positions advocated by the left. Liberals do not want to see "criminals [win] in cases against the police." We want the police to respect the Constitution and to obey the law. Liberals don't believe plaintiffs should "usually win" against defendants (much federal litigation involves one corporation suing another over business disputes that matter to no one else), but we think plaintiffs should receive a fair trial and an appeal before judges who are not hostile to the interests of employees and consumers. We don't think citizens should "usually win" in lawsuits against the government, but we don't believe courts should construct artificial barriers against successful litigation when the government abuses individuals.

Mostly, we are tired of seeing the decks stacked with judges who presume that criminal defendants are guilty because federal prosecutors say they are, who abdicate their responsibility to act as a check against the abuse of executive branch power, who excuse blatant constitutional violations by police officers, who believe the government should generally be immune from responsibility for its misconduct, and who want to keep juries from hearing lawsuits because they feel a need to protect businesses from the "sympathy" that jurors might feel for abused employees and injured consumers.

Aside from the preposterous argument that Obama wants to see judges proclaim "a federal constitutional right to welfare" and "the mass freeing of criminal defendants" (policy stances notably absent from Obama's stump speeches), Calabresi's argument comes down to this: governmental regulation is bad and judges who uphold governmental regulations are bad. We've seen where deregulation of the financial sector has left the nation. This isn't the time to appoint judges who stand in the way of regulatory agencies.

Nor is this the time to worry about "ruinous shareholder suits against corporate officers and directors." Officers of large financial institutions have done a splendid job of ruining their business without the help of the courts (often pocketing billions on the way out the door). If the directors who abdicate their responsibility to keep an eye on those officers were more readily subject to liability when they fail to put the interests of shareholders first, they would have a greater incentive to behave responsibly. That would not be a bad outcome.

Calabresi's hand-wringing notwithstanding, it will take years even to begin to restore philosophical balance to the federal judiciary. The Federalists had their way for too long. Now it's time to install some judges who care about the Constitution and who think individual rights are at least as important as corporate interests.

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  • Display: Sort:
    It seems that (5.00 / 4) (#1)
    by eric on Tue Oct 28, 2008 at 12:31:13 PM EST
    all the way from accusations of socialism at campaign rallies to commentary from the Law School at Northwestern, Republicans simply cannot contain their hysterics.  Socialism?  Constitutional right to welfare?

    These people have lost their minds.

    Exactly. I said weeks ago it's as if (5.00 / 3) (#2)
    by CaptainAmerica08 on Tue Oct 28, 2008 at 12:33:27 PM EST
    there had never been a Democratic president or a liberal head of state in the history of mankind.

    have you noticed: (5.00 / 2) (#12)
    by coigue on Tue Oct 28, 2008 at 02:33:35 PM EST
    Every Democratic presidential candidate seems to be the MOST liberal Senator/governor/etc. in the entire United States.

    They're desperate (5.00 / 2) (#4)
    by cal1942 on Tue Oct 28, 2008 at 01:36:45 PM EST
    All the garbage they've been using for the last 28 years doesn't play anymore.

    These people were never more than a one trick pony.


    I really wish someone would just ask McCain-Palin (5.00 / 1) (#7)
    by Socraticsilence on Tue Oct 28, 2008 at 02:06:13 PM EST
    About the socialism bit- seriously, I want someone to ask them if they intend to combat this "threat", after all the most clearly socialist part of our government would be social security, I want a journalist to ask McCain to put up or shut up on that sound byte- if he's anti-socialism than Social Security should be on the chopping block, otherwise he's just babbling. (McCain would of course dodge on this as to do otherwise would be suicidal-- but Palin, she might attack it-- its "spreads the wealth" after all-- even if it does so using a non-progressive tax code.)  

    A more daring question on Socialism, would be to ask if John McCain feels he's in good health; then to point out he's been on the dole his entire life-- never leaving the embrace of the federal government for employment or healthcare (his counter would be to ramble about "not having government healthcare for five and a half yearrs-- or perhaps seeing the healthcare of a socialist country up close during that time period", it'd be babble, and espeically pointless babble given he returned to governmetn healthcare immediately afterward, but hey its his one play.


    Calabresi's just bumming (5.00 / 2) (#3)
    by scribe on Tue Oct 28, 2008 at 12:59:44 PM EST
    because despite having helped found the Federalist Society, he got stuck in law school wasteland at Northwestern, rather than in a lifetime appointment as a federal judge.

    In other words:  "I helped create the framework for the Rethuglican takeover of the Courts and all I got was this professorship at a school all my "friends" laugh at and a lousy Federalist Society t-shirt."

    And a lot of wingnut welfare.

    Calabresi - if you want to trade paychecks and jobs, call me.  Until then, stuff a sock in it.

    Lets get beyond the obvious (5.00 / 1) (#5)
    by Socraticsilence on Tue Oct 28, 2008 at 01:58:21 PM EST
    The random idelogical griping-- Seriously, we blocked far less as a party than the GOP did under Clinton (though this is to be expected to an extent since we only had 2 years of control compared to their what 6-?- under Clinton, we never went as far, at least in my perspective). And to the most absurd contention that Calabresi makes- Obama will get to select 6 SC justices, that's frankly absurd, Roosevelt only got in 8 in 12 years and that was the second most (after Washington-- not as obvious as it seems as the court was only 6 members during his time in office). So Calabresi's either concedeing a second Obama term (and possibly a third?) or he thinks Justices have been waiting for a Dem in order to retire, neither of which is evident at the moment (some have been holding out- but 6!?).

    i find the whole (5.00 / 1) (#6)
    by cpinva on Tue Oct 28, 2008 at 02:00:09 PM EST
    right-wingnut meltdown quite entertaining. from the dobson's to the calebresi's, the material just writes itself. jon stewart must be having  great difficulty deciding how to fill 20 minutes of airtime, there's so much to choose from!

    this is all merely fund raising pap for the rube conservative masses though, it'll be good for millions over the next 4 years, assuming democrats in the white house, and majorities in both houses of congress.

    all in all, pretty hilarious.

    yeah, Rove's permanent (5.00 / 3) (#8)
    by ThatOneVoter on Tue Oct 28, 2008 at 02:06:31 PM EST
    realignment is on the verge of being realized!

    This time it may not be hyperbole (5.00 / 1) (#10)
    by Socraticsilence on Tue Oct 28, 2008 at 02:09:55 PM EST
    Either the GOP changes dramatically to a less xenophobic party, or their going to be in the wilderness for a long time, just through immigration and demographic attrition they'll lose AZ and probably NV for a while in the next few years-- TX is only a decade or so away, then what their the Party of the Evangelicals (in the praire/ Mid and Mtn West) and the South that's not a formula for a future majority.

    Or they stage a coup, instead of the (none / 0) (#15)
    by ThatOneVoter on Tue Oct 28, 2008 at 04:01:25 PM EST
    putsch we had in 2000.

    LOL! (none / 0) (#9)
    by CaptainAmerica08 on Tue Oct 28, 2008 at 02:07:34 PM EST
    Such Nonsense (5.00 / 2) (#13)
    by Nevart on Tue Oct 28, 2008 at 03:02:37 PM EST
    Two-thirds of Federal judges have been appointed by Republicans.  Don't like an "activist" judiciary?  Vote Democratic!

    hmmm . . . (5.00 / 2) (#14)
    by nycstray on Tue Oct 28, 2008 at 03:29:09 PM EST
    "understand what it's like to be poor, or African-American, or gay, or disabled, or old."

    or a woman . . . .?

    Senate Democrats (5.00 / 1) (#16)
    by joanneleon on Tue Oct 28, 2008 at 07:23:59 PM EST
    didn't thwart Bush's efforts at anything.

    It sounds like Mr. Calabresi is starting to think about the consequences of the last eight years of supreme corruption, and the fact that we might even have a US Attorney who might actually indict, and, gasp, a judiciary who might judge things fairly.  Fairness is a disaster for the current crop of Republicans.  

    I wonder if they really believed they'd be in power for years and years.

    Well, as I see it, they've got a few chances to survive because it remains to be seen whether the Senate Democrats will get serious, and whether a Pres. Obama will decide that accountability is important.  

    And there's always the off chance that Bush will give a blanket pardon to the entire Republican party on his way out, with a big fist jab in the air above his head.

    Good diary T. chris. (none / 0) (#17)
    by hairspray on Tue Oct 28, 2008 at 09:32:21 PM EST
    I am reading The Nine right now and already I loathe Steven Calabresi.

    Judges a legitimate concern (none / 0) (#18)
    by dhlii on Wed Oct 29, 2008 at 04:35:07 AM EST
    In fact both parties have had an abysmal record blocking each others judicial appointments. Obama may end up with a record number of appointment IF he is elected and has a filibuster proof senate.
    Whether Calabresi's assessment is correct,  each candidates basis for choosing judges is legitimate.McCain has shared his fairly limited judicial philosophy. Based on his background we should expect more from Obama than some platitudes about empathy. There is also a fundimental distinction between SCOTUS and the rest of the federal judiciary. Normally ordinary judges have or should have little latitude, they are bound by the law and by the constitution as interpreted by SCOTUS. They are obligated to decide on that basis whether they personally agree or not. While republican's justices have tended to be pro-business, democrats have tended to be pro-government, and the judges of both parties have tended to put individual liberties last.

    Judicial Appointments (none / 0) (#19)
    by bob h on Wed Oct 29, 2008 at 05:09:03 AM EST
    And while we are at it, lets have Senate Democrats invoke the nuclear option (or threaten to, which is just as effective) on judicial filibusters.