Barack Obama and the judiciary

Having trouble deciding how to vote in Tuesday’s election?

Consider judicial appointments.

On the U.S. Supreme Court, six of the current nine justices will be 70 or older on Jan. 20. The next president could easily make four appointments in his first term.

Given the success of the Democrats in blocking President Bush from filling open seats in the second-tier courts, a Barack Obama administration could also quickly fill two superannuated vacancies on the U.S. Court of Appeals for the D.C. Circuit, as well as the seats of six other judges all likely to retire soon.

“The net result is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals,” wrote Steven G. Calabresi, a co-founder of the Federalist Society and a professor of law at Northwestern University, in The Wall Street Journal.

The balance could also shift to the left on nine of the 13 other appeals courts — not counting the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Nevada and which the leftists already solidly control.

What are the standards each major candidate for the presidency would use in filling those benches?

Republican John McCain decries “the common and systematic abuse of our federal courts by the people we entrust with judicial power” and has pledged to nominate judges similar to the ones President Bush has placed on the bench, stating Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. “would serve as the model for my own nominees.”

In short, judges with at least some respect for the Constitution as a document meant to limit the powers of government to meddle in our private lives and economy.

In contrast, in his floor statements explaining his votes against the confirmation of the eminently qualified Mr. Roberts as chief justice and Judge Alito as justice, Sen. Obama typically played on his class-warfare theme, criticizing each for too often siding with the rich and powerful against those he deems to be powerless.

“In making such assessments, Obama didn’t offer even a hint of reflection on whether the law might have required the rulings he disliked, just a lamentation about the distribution of the outcomes,” points out Robert Alt, a senior legal fellow at The Heritage Foundation, who knows Sen. Obama.

In a 2001 radio interview that’s just come to light, Sen. Obama discussed the Supreme Court’s role in redistributing wealth, speaking favorably of “major” redistribution of wealth and fretting that the high court has not done enough to achieve that in the past.

Even under its interventionist heyday under Chief Justice Earl Warren, Sen. Obama lamented, “The court never ventured into the issues of redistribution of wealth and more basic issues of political and economic justice in the society. …

“One of the, I think, tragedies of the civil rights movement was, because the civil rights movement became so court-focused, uh, I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change, and in some ways we still suffer from that.”

From a lack of “redistributive change.” Got that?

Sen. Obama’s fast-thinking staff has since insisted he was talking about “redistributing rights,” like the right to vote. Pardon us, but that’s a bunch of bull. Do rich people have the right to vote three times — a right that can be “redistributed” by handing two of their votes to two poor people who previously had no right to vote? No.

The numbers of federal judgeships likely to come up for appointment “ought to raise serious concern because of Mr. Obama’s extreme left-wing views about the role of judges,” Mr. Calabresi wrote in the Journal. “He believes — and he is quite open about this — that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit. Speaking in July 2007 at a conference of Planned Parenthood, he said: ‘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.’

“On this view,” Mr. Calabresi warns, “plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.”

Federal judges are required by federal law to swear that they will “administer justice without respect to persons, and do equal right to the poor and to the rich.” But Sen. Obama’s emphasis on empathy “in essence requires the appointment of judges committed in advance to violating this oath,” Mr. Calabresi warns.

What would the kind of activist, “redistributionist” court envisioned by Sen. Obama be likely to give us? A new constitutional right to welfare; to “affirmative action”? A right to government-financed college educations and housing and free medical care, including abortions through the third trimester; ruinous shareholder lawsuits against corporate officers and directors and approval of huge punitive damage awards, not only against tobacco companies, but now against other “villains” including fast-food joints, gun manufacturers or oil companies making “obscene” profits?

If everything else about Sens. McCain and Obama make this election a toss-up, Sen. Obama’s own words on the subject reveal that, when it comes to judicial appointments, what’s at stake in this election is nothing less than our liberties and the rule of law.

Republican John McCain would appoint judges to protect them. Democrat Barack Obama says it’s time for “change.”

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