Edward Whelan, after pointing out that a President Obama would have the potential to appoint up to six new Supreme Court justices, looks at Obama’s rhetoric about the Constitution and the law, and uses that information to explain clearly what type of justices Obama would appoint:
[I]n setting forth the sort of judges he would appoint, Obama has explicitly declared: “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 criterion by which I’ll be selecting my judges.” So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.
Obama often cloaks such extreme positions in sweet-sounding rhetoric. His chapter on “Our Constitution” in his campaign manifesto, The Audacity of Hope, provides a useful case study. There, Obama characterizes his own understanding of the Constitution in positively unctuous terms: “I confess that there is a fundamental humility to this reading of the Constitution and our democratic process.” But there is nothing humble about the judicial role that Obama embraces.
Obama purports to be “not unsympathetic to Justice Antonin Scalia’s position” that the “original understanding [of the Constitution] must be followed,” but he won’t even present Scalia’s views accurately. Let’s set aside the fact, all too common among liberal critics, that Obama doesn’t keep straight the distinction between Scalia’s original-meaning species of originalism, which looks to the public meaning of a constitutional provision at the time that it was adopted, and the original-understanding species, which looks to the contemporaneous understanding of the ratifiers.
Obama finds himself compelled “to side with Justice Breyer’s view of the Constitution–that it is not a static but rather a living document, and must be read in the context of an ever-changing world.” But no one disputes that the Constitution “must be read,” and applied, “in the context of an ever-changing world.” The central question of the last several decades is, rather, whether it is legitimate for judges to alter the Constitution’s meaning willy-nilly–in particular, whether judges have unconstrained authority to invent new constitutional rights to suit their views of what changing times require. The cliché invoked by Obama of a “living” Constitution disguises the fact that the entrenchment of leftist policy preferences as constitutional rights deprives the political processes of the very adaptability that Breyer and company pretend to favor. As Scalia has put it, “the reality of the matter is that, generally speaking, devotees of The Living Constitution do not seek to facilitate social change but to prevent it.”
And so on for all of Obama’s other deceptive rhetoric in his chapter on “Our Constitution” in The Audacity of Hope, including his galling claim to be “left then with Lincoln” in their supposed common understanding of the Constitution. On judicial nominations, Obama brazenly contends that “Democrats used the filibuster sparingly in George Bush’s first term: Of the President’s two-hundred-plus judicial nominees, only ten were prevented from getting to the floor for an up-or-down vote.” What Obama’s casting conveniently obscures from the trusting reader is that these filibusters were unprecedented in the history of the Senate. Obama even pretends that it’s obvious that Republicans would resort to the filibuster “if the situations were reversed.” But the best evidence refutes Obama: There were only four votes on cloture–on proceeding to a final vote on confirmation–on judicial nominations during the Clinton administration. All four were supported by Republican leadership, and none received more than 14 negative votes from Republican senators.
Given judges’ traditional longevity on the Court, it’s important to understand that his presidency could affect every aspect of American life — criminal law, civil law, trade agreements, college admissions, abortions, managed care, anything you can think of — for a good thirty or forty years. If that doesn’t scare you to make sure you vote, nothing will.