Obama’s Judges Would Lead With Their Hearts

In his latest column, Terence Jeffrey worries that

“If Obama becomes president, he will try to stack the court not with umpires, but with players who put their heart in every game – consistently pitching and batting for Obama's favorite teams.”

Jeffrey’s concern stems from Obama’s remarks during the Roberts and Alito confirmation debates. As Jeffrey describes it, Obama argued that “the role of a justice is to favor the ‘weak’ over the ‘strong’ ” and that, in the most difficult cases,

“the determining factor is not what the law in question says, or what the Constitution says. … ‘In those difficult cases,’ Obama said, ‘the critical ingredient is supplied by what is in the judge's heart.’ Roberts and Alito were bad judges, he decided, because their hearts weren't in the right place.”

Jeffrey goes too far in asserting that Obama “wants a Supreme Court that wages class war under color of law.” But it is hard to deny that

“In contrast to his soaring campaign rhetoric about bringing America together, Obama's Senate speeches against Roberts and Alito revealed a polarizing vision of America. Minorities, women, employees and criminal defendants were among the weak; majorities, men, employers and prosecutors were among the strong.”

Nonetheless, if you are not a judicial conservative, you may be asking what’s wrong with judges protecting the weak from the strong? Well, for one thing, identification of “the weak” is very much in the eye of the beholder. We’re guessing that Barack Obama does not want judges to favor gun owners, unborn babies, white men challenging employers’ racial preferences, or property owners threatened by environmental regulations, no matter how much power they’re up against.

Moreover, the Constitution and the laws enacted by our elected representatives already contain many protections for criminal defendants, employees, minorities, women, and the like. The job of a judge is to dispassionately apply these constitutional and statutory protections, not to second guess their authors. That’s not to say that a good judge succeeds at being completely dispassionate in every case. But it is only the Left that wants to enshrine “what is in the judge's heart” as a “critical ingredient” in the law, to quote Barack Obama.

The First Amendment and the “Wall of Separation”

Hello, all! One of the reasons for my long absence from blogging has finally been released by Spence Publishing. Under God: George Washington and the Question of Church and State (with co-author Joe Smith) is now available for purchase through Amazon or Spence’s website. The book discusses Washington's perspective as an alternative to Thomas Jefferson's "wall of separation" between church and state.

I don’t need to tell readers of this blog that the phrase "separation of church and state" does not appear in the Constitution. Unfortunately, many Americans believe that it does. They do not know that the phrase originated with a letter written by Thomas Jefferson in 1802, more than a decade after the First Amendment was ratified. Nor do they recognize how odd it is that the Supreme Court has come to focus almost exclusively on the views of Jefferson, ignoring even the perspective of the Father of the Country, George Washington. Joe and I hope that Under God will help reverse this state of affairs.

In many ways, Washington is among the most qualified to speak to the meaning of the Constitution, including the First Amendment. Washington was the most admired man of his age. Unlike Jefferson, Washington was a key participant in the Constitutional Convention: He served as the Convention's president. Moreover, Washington was the first man to take the presidential oath to "preserve, protect and defend the Constitution of the United States." He served as President when the First Amendment was debated and ratified. Jefferson was instead out of the country during much of this period. Moreover, Washington actually handled church/state issues throughout his long career in public service. Should he force Quakers to fight? Should he employ military chaplains? Should he declare official days of prayer and thanksgiving? What should he do when his soldiers burn the Pope in effigy? Should he support proposals to send publicly supported missionaries to the Indians?

The views that Washington developed differed markedly from Jefferson's separationism. Washington believed that religion was a prerequisite for the virtue and morality that make self-government possible. Thus, both before and after passage of the First Amendment, he encouraged government to accommodate and even to support religion, albeit in ways that were typically non-denominational and tolerant of religious minorities.

Under God does not attempt to exhaustively interpret the First Amendment. Instead, it points out that Jefferson is not the only Founder with a valuable viewpoint as to church-state issues. Washington's views merit study and respect as well. Under God provides a layperson-friendly account of Washington's experience with, and views about, the role of religion in American civic life. It discusses each of the major periods in Washington's life in chronological order: Commander of the Virginia Regiment, Member of the House of Burgesses, Commander-in-Chief of the Continental Army, Father of a New Nation (at the Constitutional Convention), and President of the United States. It concludes with a generous Appendix containing a selection of Washington's relevant writings. An Epilogue discusses how Jefferson's separationist perspective came to be disproportionately influential in modern Supreme Court jurisprudence.

I implied at the beginning of this post that I had a few reasons for my long absence from blogging . . . . The other reason just turned 7 months old last week. She is doing very well also! I look forward to posting (at least a little) more often now that my two babies have arrived.

Internet Censorship

Last week, a federal district court judge ordered that the WikiLeaks web site, devoted to helping whistleblowers "expose wrongdoing," be taken down by its domain name registrar. The judge’s order was the result of a lawsuit by a Cayman Islands bank whose internal documents, implying tax evasion and money laundering, were posted on the web site. The bank argued that the documents were provided illegally by a disgruntled ex-employee and that release of the information, whether true or false, would be detrimental to the bank.

WikiLeaks may be allowed back on the Internet if it removes the bank documents. Nonetheless, the judge’s order seems to afford less First Amendment protection to web sites than to more traditional media. It’s hard to imagine a judge shutting down a magazine or newspaper, even temporarily. Moreover, the judge’s action is eerily similar to that of the Chinese government, which shut down WikiLeaks.cn last year for its own reasons.

The traditional remedy of awarding damages, where appropriate, would seem preferable here. The free market has a role to play as well. WikiLeaks has a national reputation to protect and thus has a built-in incentive not to post misinformation or otherwise appear reckless or irresponsible.

State AG - Trial Lawyer Cabal

Last spring, the Committee for Justice applauded President Bush’s order barring federal agencies from hiring outside counsel on a contingency fee basis, a practice which allowed trial lawyers to earn exorbitant fees while ostensibly representing the American people. We noted that the problem was particularly pernicious at the state level, as an editorial in today’s Wall Street Journal – focusing on Mississippi Attorney General Jim Hood – makes clear.

What the Journal found by examining Hood’s campaign finance records is disturbing. The outside law firms that Mr. Hood retained to “represent” Mississippians – while typically collecting huge contingency fees – contributed more than $500,000 in campaign contributions to Hood during the past two election cycles. Similar kickbacks have come from “law firms that have piggybacked their class action suits on Hood's state prosecutions.” What’s more, in 2007 alone, law firms benefiting from their cozy relationships with Mr. Hood funneled another $550,000 in contributions to Hood through a 527 group.

As if all that is not enough to call Mr. Hood’s judgment – if not his integrity – into question, consider that one of the trial attorneys in bed with Hood pleaded guilty to corruptly influencing a judge, while another stands indicted on bribery charges. It’s no wonder that “Mr. Hood and his trial bar partners are fighting even Mississippi's modest attempt to require more transparency in their contracts.”

Unfortunately, this “tort bar-AG cabal” is hardly limited to Mississippi. As the Journal op-ed notes, the larger issue is

“the way this AG-tort bar mutual financial interest creates perverse incentives that skew the cause of justice. A decision to prosecute is an awesome power, and it ought to be motivated by evidence and the law, not by the profit motives of private tort lawyers and the campaign needs of an ambitious Attorney General.”

Obstruction of FISA and Judges

House Democrats’ startling decision yesterday to leave town without allowing a vote on the intelligence bill passed overwhelmingly by the Senate – thus allowing the Protect America Act (PAA) to expire at midnight tonight – reminds us of Senate Democrats’ handling of the President’s judicial nominees for several reasons.

In both cases, a key role is played by special interest groups: trial lawyers eager to sue telecommunications companies that cooperate in the surveillance of foreign terrorists, and ultra-liberal groups whose raison d'etre is the savaging of conservative judicial nominees. The problem is not that these groups succeed in convincing a majority of senators or House members to vote against a sorely needed bill or an exceptionally qualified nominee. Quite the opposite. In both cases, it is precisely because a clear majority of members support the President’s judicial nominees and the Protect America Act that they are never allowed to come to a vote.

In both cases, the Democratic leadership appears to be so beholden to special interests – and probably so blinded by their hatred of the President – that it’s willing to hand a winning issue to the GOP. In 2004, the last time judicial nominees were an election issue in Senate races, the issue cost Senate Democrats and their leader, Tom Daschle, dearly. Yet Senate Democrats persist in obstructing judicial nominees at risk of making it a big issue this November.

At the same time, the House leadership’s decision to let the Protect America Act expire plays right into the hands of John McCain. In the best case, House Democrats are elevating the visibility of War on Terror issues – McCain’s strong suit – while demonstrating that they are incapable of the bipartisanship that characterized the Senate’s overwhelming passage of the same bill. In the worst case, Nancy Pelosi and company are increasing the risk of a pre-election terrorist attack that would virtually guarantee the election of John McCain, especially if it can be blamed on their failure to renew the PAA.

Finally, our view on passage of the Protect America Act is the same as our philosophy on the confirmation of judicial nominees. If senators and House members are sincere in their belief that the PAA is a threat to civil liberties or that the President’s judicial nominees threaten civil rights – they can and should vote against passage or confirmation on the floor. What they should not do is thwart the will of the majority by preventing a fair up-or-down vote.

60 Groups Demand Action on Judicial Nominees

Today, a coalition of about 60 organizations – led by the Committee for Justice – delivered a letter to each member of the Senate Judiciary Committee "to express our deep concern about the lack of progress in 2007 in reporting judicial nominees . . . out of the Judiciary Committee, and to discuss reasonable expectations for progress on this issue in 2008." Details can be found here.

Judges – McCain's nominees and a pay raise

Here are two pieces on judges that are notable for their “Nixon goes to China” viewpoint.

Conservatives’ concerns about the type of judges John McCain would appoint as president have become prominent of late. And we too have some doubts. But consider today’s Wall Street Journal op-ed on judicial appointments by Professor Steven Calabresi – Chairman and co-founder of the conservative Federalist Society – and his similarly-minded colleague Professor John Mcginnis. The conservatives who care most about the appointment of constitutionalist judges greatly admire both men, so their view that “John McCain is the best option to preserve the ongoing restoration of constitutional government” carries a lot of credibility.

Calabresi and Mcginnis argue that

“[McCain] is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect. . . . For other kinds of issues, it may be argued that it is better to lose with the perfect candidate than to win with an imperfect one. . . . The judiciary is different. . . . Even if a more perfect candidate were somehow elected in 2012, he would not be able to undo the damage, especially to the Supreme Court.”

The second piece evinces the breadth of support for giving federal judges a much needed pay raise. Even the liberal New York Times is on board. Hours before the Senate Judiciary Committee approved a 29% pay raise at the end of last week, the Times editorialized that “the case for a substantial increase is a strong one,” especially in light of the nearly 25% decline in judges’ real wages since 1969. The Times cited Chief Justice Roberts’s observation that the decline “has left federal trial judges . . . earning about the same as (and in some cases less than) first-year lawyers at firms in major cities.” The House Judiciary Committee approved a similar bill in December.

Are Judicial Nominations the Next Big Issue in the Race for POTUS?

It looks so, at least on the GOP side. It started on January 22nd with a press release from Senate Minority Leader Mitch McConnell which included this demand for more action on the president’s judicial nominees: “[W]e can’t confirm judges if they don’t get hearings. And since last summer, Democrats have allowed only one hearing on a circuit court nominee. Compare that with Senate Republicans in 1999, who held more hearings on President Clinton’s nominees in the fall of that year alone than Democrats allowed this president all last year. This pattern is neither fair nor acceptable.”

As Curt has noted below, the Wall Street Journal published an op-ed last Friday by Pennsylvania Senator Arlen Specter expressing his concern about the state of judicial nominations. Specter mentioned nominees Peter Keisler and Robert Conrad by name and noted with disappointment that “[s]ome Senate Democrats oppose particular nominees because they feel some of President Clinton's nominees were treated unfairly. Perhaps they were. But we can make no progress in the Senate or in the nation if we keep talking about perceived wrongs and behaving like the feuding Hatfields and the McCoys. At some point, we simply have to turn the page.”

After John McCain resurrected his campaign with a win in New Hampshire and began to raise more money and win more delegates, some conservatives began to express doubts about what kind of judges he would appoint to the federal bench. Other conservatives, such as John Hawkins, no big fan of McCain, see the courts as the reason to come out and vote FOR McCain in November. In a column posted on last Friday’s edition of RealClearPolitics.com, Hawkins reminded conservatives that the future of the Supreme Court is in the balance in 2008. “The court is currently split with 4 conservatives, 4 liberals and a moderate,” Hawkins asserted. “That means a number of important cases, including Roe v. Wade, will probably be decided once and for all by the Supreme Court appointments of the next President of the United States. May God forgive us if we condemn a million plus children a year to death by abortion because we're angry at John McCain. ”

McCain and/or his team apparently are aware of the controversy. A day before last Tuesday’s Florida primary McCain held a conference call hoping to assuage conservatives’ fears. According to NRO’s Mark Hemingway McCain “was unequivocal that 1) he was and is committed to supporting Justices Roberts and Alito and 2) McCain-Feingold would not be a litmus test for the justices he appoints.” Then, after his victory in Florida he mentioned the issue in his victory speech, declaring that judges should “leave to elected officials” the responsibility of making the laws.

So far the MSM has been a bit slow to pick up on this increasingly important campaign issue, but the GOP base, the candidates and several Republican leaders in the U.S. Senate have not. Look for judicial nominations to be a topic more heavily discussed, especially in GOP and conservative circles, in the near future.

Specter: Voters Want End to Judges Feud

In Friday’s Wall Street Journal, Sen. Arlen Specter observes that, “If the presidential primaries are any indication, Americans of every political stripe are rejecting reflexive partisanship” and suggests that his Senate colleagues do the same when it comes to judicial nominees. Specter notes that “some Senate Democrats oppose particular nominees because they feel some of President Clinton's nominees were treated unfairly,” but concludes that “we can make no progress in the Senate or in the nation if we keep talking about perceived wrongs and behaving like the feuding Hatfields and the McCoys.”

No one can reasonably accuse Sen. Specter of asking for too much. He requests that “at a bare minimum, nominees received from the president in 2007 deserve a committee hearing and a vote before the end of 2008.”

Specter notes that “one nominee in particular deserves immediate attention,” namely D.C. Circuit nominee Peter Keisler. As Specter explains,

“Keisler's nomination has been pending for over 580 days without a committee vote – even though he had a hearing in August 2006. Mr. Keisler . . . most recently provid[ed] much needed leadership as Acting Attorney General following Alberto Gonzales's resignation. The American Bar Association has unanimously given Mr. Keisler its highest rating, ‘well qualified.’ The Los Angeles Times and The Washington Post editorialized in favor of his confirmation.”

Specter calls for “a truce in the partisan grudge match that has done such a disservice to judicial nominees, to the legal system, and to the Senate itself.” We note that, with the party affiliation of the next president up in the air, there can be no fairer time to call a truce. While that’s easier said than done, one possibility is bipartisan agreement on unambiguous standards of timeliness and fairness intended to endure no matter which party controls the White House. In fact, the President suggested just that during his first term, when he proposed a “strict deadline, which will apply no matter who is President and which party controls the Senate.”

When the president made that proposal in October 2002, Senate Democrats balked. But given the imminent presidential election and voters’ increasing demand for less partisanship, maybe Democrats are ready to seriously consider Sen. Specter’s call for a truce.