Judicial Philosophy Matters

Matt Yglesias takes Ed Whelan (Whelan's response to Yglesias) to task for taking Barack Obama to task for his statements on the importance of judicial philosophy:

While his language is over the top (though, upon reflection, Whelan in his response has some evidence that Obama is intentionally making a false statement here, but pols do that) , I think Whelan makes a good point - Obama is clearly avoiding the issue (and 4 days from an election, probably a smart thing.) Obama clearly does intend to discount the importance of judicial philosophy in this interview, and he is wrong when he does so. More.

The President's choice of Supreme Court justices is, in my view, the second most important power he has (after the de facto power to use military power). I think that is Whelan's point - that Obama is answering the question in a political manner. Of course, Obama is a politician, 4 days from an election, so to expect some "straight talk" on this issue is clearly not realistic. You would likely hear the same type of thing from McCain.

Pols are pols and do what they do and Whelan knows this. As a partisan (as I am) he certainly is looking for an ax to grind with Obama but his basic point is a fair one.

Yglesias' defense of Obama is rather silly. Yglesias writes:

This seems to totally miss the point. The reason Supreme Court decisions are rarely unanimous isnt that cut-and-dry legal issues are rare. . . . [I]n his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying hes not, at all, denying that judicial philosophy is important. Hes just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.

Brian Williams specifically asked Obama about Supreme Court appointments, not "the total docket that sits before federal judicial system." In context, Obama is clearly ducking the question. I do not know if Williams followed up and pressed Obama on the point, but it is obvious that Obama avoided the question, which is Whelan's actual point I think. It is unfortunate that Whelan resorts to calling Obama a liar - Obama did not lie, he ducked the question (upon reflection, perhaps a close call as I note above.) Whelan knows this. But 4 days from an election, we all get caught up in the "he's a liar" thing. I am not sure that Yglesias knows this. His post misses the issue. But I doubt he would have defended a likely similar McCain answer. But then again, Whelan would not have attacked a similar McCain answer either.

By Big Tent Democrat, speaking for me only

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    Whelan (5.00 / 2) (#8)
    by Steve M on Fri Oct 31, 2008 at 12:20:58 PM EST
    is just trying to gin up some semblance of an issue.  There's nothing here.

    Obama dodged the question but (none / 0) (#1)
    by oculus on Fri Oct 31, 2008 at 11:24:12 AM EST
    then went a lot further than he needed to, talking about states regulating the right to marry the "woman you choose" and the SCOTUS Second Amendment decision.

    P.S.  I guess Sunstein is on the short list--Obama knows all these people!

    I thought... (none / 0) (#2)
    by Thanin on Fri Oct 31, 2008 at 11:41:38 AM EST
    the marry whom you choose was code for pro same-sex, or at the very least not anti same-sex marriage.  You know, the implied right to privacy stuff.

    If Obama was truly pro same-sex (none / 0) (#3)
    by oculus on Fri Oct 31, 2008 at 11:51:38 AM EST
    marriage, he would be publicly advocating defeat of California's Prop 8.  Schwartenegger is.  Ward Connaly is also; he's the former Board of Regents trustee (University of California) who pushed for the end of affirmative action.  

    Neither you... (none / 0) (#4)
    by Thanin on Fri Oct 31, 2008 at 11:55:55 AM EST
    or I know this for sure, and I agree with the sentiment that in an ideal world he'd be overt about how he feels either way (or in such a world it would never need to be said), but unfortunately no one lives in that world.  Maybe comeback to me in 200 years.

    I might be mistaken, bud didn't Obama (none / 0) (#5)
    by tigercourse on Fri Oct 31, 2008 at 11:57:11 AM EST
    make a statement against prop 8?

    Obama (5.00 / 2) (#7)
    by Steve M on Fri Oct 31, 2008 at 12:17:20 PM EST
    called Prop 8 "divisive and discriminatory" and said he opposes it.  LINK

    Exactly; but, more like a (none / 0) (#9)
    by oculus on Fri Oct 31, 2008 at 12:28:34 PM EST
    "whisper" than a shout out.

    He wrote a letter to a (none / 0) (#6)
    by oculus on Fri Oct 31, 2008 at 12:15:41 PM EST
    issue friendly publication.

    Rejected appeals (none / 0) (#10)
    by Manuel on Fri Oct 31, 2008 at 01:15:53 PM EST
    Yglesias did not make this point but making rejected appeals part of the data would make a big difference.  If you count rejected appeals as unanimous decissions, the percentages would change drastically.  Probably not to 95% or 99% but much higher than what Whelan quotes.  Of course, the cases that are taken have extraordinary weight.

    We do not hear the same thing from McCain on judges.  McCain has made it very clear what kind of judges he would appoint.  He would appoint conservatives in the mold of Roberts, Alito, and Scalia.  Obama has been more guarded.  We know his chices won't be like Roberts, Alito, or Scalia bt that still leaves a wide field.

    He like Roberts b/4 he (none / 0) (#11)
    by oculus on Fri Oct 31, 2008 at 01:28:06 PM EST
    didn't like him.

    Nader's running mate, Matt Gonzalez, has a great (none / 0) (#12)
    by suzieg on Fri Oct 31, 2008 at 02:00:16 PM EST
    article on counterpunch.com/gonzalez10292008.html named "What do they have to do to lose your vote? The trail of broken promises" Here's an excerpt:

     Those who think Sen. Obama will appoint good Supreme Court justices should just take note of his long history of supporting some of the worst Bush appointees to the federal bench, including Thomas Griffith (D.C. Cir.), Susan Blake Neilson (6th Cir.), Milan Smith (9th Cir.), Sandra Segal Ikuta (9th Cir.), and Kent Jordan (3rd Cir.). The Neilson vote was particularly troubling as both senators from her own state "blue slipped" her for being "too extreme."

    And even when he does manage to muster the courage to vote against conservative appointees, he does it in a lukewarm and perfunctory manner, refusing to join Democratic Party filibuster efforts. This is deeply troubling. He voted cloture (to end any voting delay) on Priscilla Owen (5th Cir.) and Brett Kavanaugh (D.C. Cir.) both extremely conservative jurists, thus ensuring they would be confirmed.

    How dishonest (none / 0) (#13)
    by Steve M on Fri Oct 31, 2008 at 02:23:42 PM EST
    Susan Bieke Neilson was confirmed UNANIMOUSLY.  I don't even need to bother fact-checking the rest of what the guy says when he serves up a whopper that huge.  Just look at the lies these people need to tell in order to make the ridiculous argument that both parties are the same.

    So was Scalia, therefore because Neilson's (none / 0) (#17)
    by suzieg on Sat Nov 01, 2008 at 04:12:57 AM EST
    confirmation was unanimous it excuses his vote? You've basically confirmed to me that he doesn't have a mind of his own and just follows the crowd? Very encouraging....

    She was blue-slipped by her two senators, even though they lacked the courage to actually vote against her, if he had any moral fortitude, he would have voted against her regardless of how the other 99 did! You either stand for your beliefs/principles or you don't!

    Here's a little reminder of the other judges Obama felt deserved to be confirmed:

    5/24/05: Obama voted for cloture on Priscilla Owen for the 5th Circuit.  Torture-proponent Alberto Gonzales even called Owen extreme in her right-wing stances.  Her record shows that she is anti-environment, anti-labor, anti-civil rights, anti-human rights, pro-discrimination and pro-polluter.  Activists tried to stop cloture as the confirmation vote was a sure thing once the Senate voted for cloture.  Roll call 127

    6/14/05: Obama further stabbed the women's movement in the back by voting to confirm Thomas B. Griffith to a lifetime appointment as a justice on the DC Circuit, a court often used as a stepping stone for the U.S. Supreme Court.  Griffith, who is not licensed to practice law in Utah (his home state), believes that equal opportunity for women violates the Equal Protection Clause of the 14th Amendment.  In February, 2007, thanks to Obama's backing of Griffith, the DC circuit has now ruled that Guantanamo detainees have no right to habeas corpus.  Roll call 136

    9/26/05 & 9/28/05:  Obama failed and refused to place a hold on the nomination of John Roberts, a supporter of permanent detention of Americans without trial, and of torture and military tribunals for Guantanamo detainees.  John Roberts's  wife worked for Operation Rescue, an organization that uses extreme measures (including violence) to oppose women's doctors.  John Roberts has questioned the Constitutionality of the Violence Against Women Act and of the Endangered Species Act.  He has also expressed opposition to equal pay for women.  Roberts was responsible for a plan to disenfranchise tens of thousands of African-Americans in Florida in 2000.  Roberts was a personal pick of Pat Robertson, a man who has called for the assassination of the first world leader (of all world leaders, including our own) to offer aid to the victims of Hurricane Katrina.  In his confirmation hearings, Roberts refused to say whether he would uphold legislation that overrode a presidential veto.  A unanimous consent agreement was necessary to take Roberts's nomination to the floor, and Obama could have placed a hold on the nomination but would not do so despite the opposition of over 80% of the American public to the Roberts nomination.

    10/27/05:  Obama voted to confirm Susan Blake Neilson for the Sixth Circuit.  She had a history of being a judicial activist against plaintiffs in civil rights, employment, personal injury and government negligence cases and a tendency to dismiss claims that present triable issues of fact.  Both of her state Senators felt she was so extreme that they blue-slipped her.  Roll call 277

    5/16/06:  Obama voted to confirm Milan D. Smith to the 9th Circuit.  The appointment was part of an Bush's effort to turn the 9th Circuit from moderate to extreme right wing by adding justices to the Circuit who would support the Bush Agenda.  This directly damaged the chances of getting a fair trial on the West Coast.  Roll call 120

    5/25/06:  Obama voted for cloture on the nomination of Brett M. Kavanaugh to be a justice on the D.C. Circuit, placing him in line for a future Supreme Court nomination.  The trouble is that he is another right-wing extremist who will undercut human rights on the cases he judges.  A result of his confirmation is the recent decision to deny Guantanamo detainees the right of habeas corpus.  Roll call 158

    6/19/06:  Obama voted to confirm Sandra Segal Ikutu, another opponent of human rights, to the 9th Circuit.  This was part of Bush's stacking of the 9th Circuit in a seeming effort to turn the 9th circuit from moderate to right-wing.  Roll call 175

    12/8/06:  In Roll Calls 275 and 276, Obama voted for cloture and confirmation of another of Bush's right wing Circuit Court nominees, Kent A. Jordan.  This nomination is part of Bush's plan to pack the 9th Circuit against labor, against the environment, against choice, against civil rights and civil liberties and in favor of corporate rule.

    2/15/07: Obama voted to confirm conservative Norman Randy Smith of Idaho for the 9th Circuit.    Roll Call 49

    3/15/07: Obama voted to confirm conservative Thomas M. Hardiman for the 3rd Circuit.  Roll Call 95

    5/9/07: Obama voted to confirm anti-human rights justice Debra Ann Livingston to the Second Circuit.  Roll Call 158

    12/18/07: Obama didn't bother to vote either way on the confirmation of right wing justice John Daniel Tinder to the Seventh Circuit.  Roll Call 442

    along with the above, you can find all of his votes since his first day in the Senate at: www.creativeyouth.net/realobama.html, which makes for real interesting reading!


    I sorta liked Obama's (none / 0) (#14)
    by brodie on Fri Oct 31, 2008 at 02:42:32 PM EST
    response, with the emphasis on the overall judicial philosophy -- anti-literalist/rigid textualist -- rather than litmus-testing judicial prospects on specific hot-button political issues.  And whatever rhetoric he used to get into that argument -- the 99% of cases that are straightforward, well that's typical hyperbole from a pol.  

    Btw, I don't buy part of the premise of the question from BW that Ike was surprised by Brennan and called him a "mistake".  I can't find any reliable source that nails that one down -- or as applied to Earl Warren either, for that matter.

    Brennan wasn't chosen for his judicial philosophy, but for his personal and political profile, as the pick came in an election yr, and Ike wanted at that time to display his bipartisan chops.  WB's lib-leaning inclinations would have been easily spotted by 56, so I tend to doubt the later quote put in Eisenhower's mouth.

    On the Other Hand (none / 0) (#16)
    by kaleidescope on Fri Oct 31, 2008 at 05:55:47 PM EST
    As Obama said, he knows most of the potential appointmentees to the Supreme Court and is perfectly capable of reading their writings.  

    It would be crass, as part of any vetting process, to ask a potential appointee how he or she thinks about a particular case.  I doubt Obama would be that crass.

    So I think Obama is actually being fairly truthful.  He is saying that he knows exactly how to figure out a potential appointee's judicial philosophy without  having to ask about Roe v. Wade or Griswold v. Connecticut.

    That Brian Williams and his viewers may not quite get this and that Obama is content to remain coy doesn't mean that he wasn't being truthful or forthcoming in his answer.