The Appellate Courts and the Next President

Jonathan Adler has an interesting piece today in the National Review Online in which he analyzes the impact that the next president will have on federal appellate courts. He states that although President Bush and Republicans have had a great impact on the federal judiciary, with 56 out of the current 179 appellate court judges nominated by Mr. Bush or prior Republican presidents, “in just a single term, a President Obama could flip the federal judiciary, such that a clear majority of federal appellate judges would be Democratic nominees.”

Adler points to a recent analysis by Russell Wheeler, former deputy director of the Federal Judicial Center. The analysis reveals that many judges will be nominated by the next president through existing vacancies, judges opting for senior status, and through the creation of 14 new seats, which has been recommended by the U.S. Judicial Conference. Adler writes:

“If Wheeler’s estimates are correct, this would mean that a President Obama would have the opportunity to fill 61 appellate spots in his first four years. In other words, a President Obama could come close to matching President Bush’s influence on the U.S. Courts of Appeals in just his single term, as he would name almost one-third of the federal appellate judges on the bench. This would also increase the percentage of sitting federal appellate judges picked by Democratic presidents up to 58 percent.”

Adler raises a valid point: with a possibly Democratic Congress and White House, Democrats’ control of the judiciary would be inevitable. Even if it was not Halloween, this would still be a pretty scary thought.

75% Chance of Liberal Obama Court; It’s the Popular Vote, Stupid

We’ve been looking at some numbers and have reached a couple of interesting conclusions about the election:
1) If Barack Obama is elected president and serves eight years, there is a roughly 75% chance that he will be able to establish a solid liberal majority on the U.S. Supreme Court.
2) You can safely ignore all those state-by-state polls of the presidential race that you’re being bombarded with.

The Supreme Court is just one liberal justice away from having a 5-vote liberal majority. Given Barack Obama’s decidedly liberal judicial philosophy, there’s little doubt that if he is elected and gets to replace Justice Kennedy or one of the four conservative justices, the result will be a solid liberal majority of at least five votes. That prospect is enough to keep up one at night. And what better way to fight insomnia than to check the life expectancy tables to see how likely this unsettling scenario is.

The answer isn’t comforting. If Obama is elected and serves for eight years, there is about a 75% chance that he will replace Scalia or Kennedy and establish a solidly liberal Supreme Court. Consider the following:
1) Six Supreme Court Justices have retired during the last 20 years. The five who have died – Brennan, Marshall, White, Blackmun, and Rehnquist – left the Court an average of four years before their death.
2) Justices Kennedy and Scalia are both 72, and American men who have made it to that age have an average life expectancy of 84.

Combining those two facts, we can compute the likely age at which Scalia and Kennedy will leave the Court. Specifically, the expected value (i.e., mean of the probability distribution) for their retirement age is 80. In other words, there is about a 50% probability that each man will leave before reaching age 80 in 2016.

Do the math (50% x 50% = 25%) and you can see that there is only a 25% chance that both Kennedy and Scalia will serve beyond the 2016 election. Conversely, there is a 75% chance that if Obama serves through 2016, he will replace Kennedy or Scalia and establish a solidly liberal Court. Of course, there’s no guarantee that Justices Thomas, Alito, and Roberts will all be on the Court eight years from now, so the odds of a liberal majority are actually greater than 75%.

It’s the Popular Vote, Stupid

We realize that they make for great TV and full employment for pollsters, but the truth is that you can safely ignore all those state-by-state polls of the presidential race that you’ve been seeing. Sure, we know that there will be 51 separate elections for president next Tuesday, but history shows that it’s the nationwide popular vote that effectively determines the winner. We can pretty much guarantee you that, unless the popular vote is essentially tied – that is, less than a 1% difference between the top two vote-getters – the winner of the popular vote will be the next president. We know that not because we have a crystal ball, but because it’s never been otherwise.

When the popular vote is essentially tied, there’s obviously no telling which candidate will win the electoral vote and thus the presidency. Thus twice, a candidate who trailed by a fraction of a percentage point in the popular vote – George W. Bush in 2000 and Grover Cleveland in 1888 – won an Electoral College victory. And in 1876, Democrat Samuel Tilden beat Republican Rutherford B. Hayes by 3% in the popular vote and led by 19 electoral votes, with 20 in dispute. In the Compromise of 1877, Hayes was given the 20 electoral votes and the presidency in return for an end to Reconstruction. But these anomalies prove the rule: win the popular vote by a meaningful amount and you’re the next president.

Obama on Redistribution & Empathetic Judges

As Halloween approaches, there’s new reason to be scared of what Barack Obama has in mind for the federal courts. Earlier this week, a tape of Obama’s 2001 interview on a Chicago PBS station caught him wistfully noting that the Warren Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution” in order to bring about “redistribution of wealth.” The obvious question is whether Obama’s “living Constitution” approach to the law will mean an end to those essential constraints.

Yesterday, op-eds by Thomas Sowell, Steven Calabresi, and Robert Alt discussed this and related issues. Alt notes the connection between Obama’s redistributional ethic and his oft-cited call for judges who have “the heart, the empathy, to recognize what it's like to be a young teenage mom … what it's like to be poor, or African-American, or gay, or disabled, or old.”

“[Obama] has repeatedly said he wants judges who demonstrate empathy. … [I]n his floor statements explaining his votes against the confirmation of John Roberts as chief justice and Sam Alito as justice, he played on the 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.”

Calabresi wonders what news constitutional rights will flow from an Obama Court that shares his redistributional ethic:

“Is [Obama’s] provision of a ‘tax cut’ to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.”

We share Calabresi’s concern . In fact, when we published “Top Ten Things to Expect from an Obama Supreme Court” in July, number 4 was “new constitutional rights to massive government welfare and medical care programs.”

To be fair, Obama said in the 2001 interview that he was “not optimistic about bringing major redistributive change through the courts.” But as Alt points out, “his objection is simply that the courts aren't very good at carrying out long-term redistribution – not that major ‘sharing the wealth’ shouldn't come from other branches of government.”

Sowell succinctly sums up the problem with selecting judges who are inclined to rule for the party that is “poor, or African-American, or gay, or disabled, or old.”

“Do we really want judges who decide cases based on who you are, rather than on the facts and the law? … We are supposed to be a country with ‘the rule of law and not of men.’ … Obama is proposing the explicit repudiation of that ideal itself. That is certainly ‘change,’ but is it one that most Americans believe in?”

In fact, Calabresi notes, Obama’s approach to judging contradicts the oath that all federal judges take:

“Every new federal judge has been required by federal law to take an oath of office in which he swears that he will ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’ Mr. Obama's emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.”

Calabresi ends his op-ed with his own list of far-left rulings we may well see from an Obama Supreme Court:

“If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.”

Obama: Courts Should Redistribute Wealth

Whether it's Obama claiming that the Warren Court was much less “radical” than people have characterized it or bemoaning the Supreme Court’s “never [venturing] into the issues of redistribution of wealth,” this 2001 interview with the popular candidate should seal the case for his activist judicial philosophy. No matter how erudite and eloquent, Obama expresses some pretty radical views here.

Obama insinuates that the Constitution is out-of-touch, for it is only

“a charter of negative liberties. Says what the states can’t do to you. Says what the Federal government can’t do to you, but doesn’t say what the Federal government or State government must do on your behalf.”

Jeff Goldstein concisely summarizes the ramifications for an impending Obama presidency:

“‘In Obama’s America, we’ll finally be able to break free of the ‘constraints that were placed by the founding fathers in the Constitution’ — and in so doing, achieve ‘social justice’ through ‘redistributive change.’”

And Steve Schippert warns that

“the prospects of an Obama presidency and a large [D]emocrat majority that leans far left in both the House and the Senate will set the stage for "legislative" imposition of the transfer of wealth to those who he views have a civil right to that money.

That this is wholly counter to the Constitution is of no matter. Congress will pass 'transformational' tax and health care legislation, Obama will sign it into Law, and the only thing standing between it and us is the Supreme Court, which could strike down the laws as un-Constitutional. But what will that Supreme Court look like after one or two Obama appointments? Will it have the will to do so, or will enough justices 'interpret' ('invent' is a more appropriate term) the Constitution in the manner Obama does?”

Socialism here we come.

Was Heller an Activist Decision?

As Adam Liptak wrote in The New York Times a few days ago, the Supreme Court’s recent decision in District of Columbia v. Heller has come under attack from several prominent conservative legal scholars. It is easy to understand how opponents of judicial activism, many of whom are admirers of Justice Scalia (the author of the majority opinion in Heller), would be ambivalent over the decision. These people see the historical links as tenuous and find the Second Amendment’s prefatory clause (“A well regulated militia, being necessary to a free State,”), as relevant to the understanding of the operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). It seems that most of the general public, though, sees the Second Amendment as granting an individual right to bear arms.

In his critique of the decision, Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit stated that Heller “is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.” Judge Posner criticizes the originalism used by Justice Scalia, saying:

“Originalism without the interpretive theory that the Framers and the ratifiers of the Constitution expected the courts to use in construing constitutional provisions is faux originalism. True originalism licenses loose construction. And loose construction is especially appropriate for interpreting a constitutional provision ratified more than two centuries ago, dealing with a subject that has been transformed in the intervening period by social and technological change, including urbanization and a revolution in warfare and weaponry.”

Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit compares Heller to Roe v. Wade in a forthcoming article in the Virginia Law Review, saying “the comparison is apt. In a number of important ways, the Roe and Heller Courts are guilty of the same sins.” This teaser of Judge Wilkinson’s forthcoming article is all we have at the moment, but his argument is provocative, to say the least.

Was Heller a form of judicial activism by Justice Scalia? Or did Justice Scalia use history to the best of his ability to understand the original intent of the framers when they wrote the Second Amendment? These are difficult questions to answer, and depending on which conservative one asks, apparently a variety of answers can be found.

McCain: Judges Nominated Would Not Agree With Me on “Every Single Issue”

Over the last several months, bloggers and pundits have brought up the issue of whether McCain’s promise to nominate non-activists to the federal courts conflicts with his support of campaign finance reforms, including McCain-Feingold. In the words of Volokh Cospiracy blogger Illya Somin, “a President McCain would face a difficult tradeoff between the goal of appointing conservative jurists and the goal of saving the McCain-Feingold law from invalidation by the Court."

In a recent interview with Human Events, the Senator responded to reporter John Gizzi’s question concerning this issue:

“Q: Now the four justices you cite as models for nomination -- Roberts, Alito, Clarence Thomas, and Antonin Scalia -- have all at different times voted to overturn parts of the McCain-Feingold campaign legislation you co-authored. Would you appoint justices who would do that?

A: Well, obviously, I wouldn’t impose any litmus tests. No justice that I would nominate would I expect to agree with me on every single issue. The majority of justices just made a ruling on detainees I didn’t agree with. That was very disturbing to me. And so, I can’t say I would agree with every decision. But if I can count on every justice that I name to share my view of the judiciary, then in the long run, things should come out OK.”

McCain gets it exactly right. In contrast to the outcome-oriented judicial philosophy of Barack Obama, McCain believes that the measure of a judge is not reaching the outcomes McCain desires but instead, using a constitutionalist approach to reach whatever outcome is dictated by the law.

Judges Issue in 3rd Debate

After getting short thrift in the first two presidential debates, the judges issue played a prominent role last night thanks to Bob Schieffer’s question about Roe v. Wade and Supreme Court appointments. Three themes stood out in that discussion:

1) Federalism vs. one size fits all

When asked about Roe v. Wade, John McCain said he favors a “federalist” approach to abortion. “I think that decisions should rest in the hands of the states,” he explained. Obama, on the other hand eschewed both a federalist and democratic approach, saying abortion rights shouldn’t be “subject to state referendum” or “subject to popular vote.” While that’s certainly true of First Amendment rights, as Obama noted, it begs the question of whether the Supreme Court should continue to give the judge-made right to abortion the constitutional status of rights explicitly given to us by the Founding Fathers.

What’s notable here is not that Obama supports Roe or that McCain thinks it was wrongly decided – we already knew that – but that McCain opposes a one-size-fits-all federal solution. Instead he wants the states to decide, which is exactly what would happen if Roe v. Wade were overturned. In contrast, a pro-life federal solution would presumably involve a federal statute or federal constitutional amendment prohibiting most abortions. It could also involve the pro-life equivalent of Roe v. Wade, that is, a Supreme Court ruling discovering a “right to life” in the Constitution. But that’s unlikely, as we’ve seen no indication that the conservative Justices share their liberal colleagues’ stomach for unbridled judicial activism.

2) Bipartisanship

Americans can only speculate about which of the two presidential candidates would be better able to reach across the aisle as President. But Sen. McCain reminded us that, when it comes to judges, he clearly has the more bipartisan track record:

“I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified … Senator Obama voted against Justice [Alito] and Justice Roberts on the grounds that they didn't meet his ideological standards.”

“There was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. We got together seven Republicans, seven Democrats [in the Gang of 14 agreement]. You [Obama] were offered a chance to join. You chose not to."

3) Outcome-oriented judging vs. rule of law

Sen. Obama once again made clear that he will appoint outcome-oriented judges rather than judges who go where the law leads them:

“I will look for those judges who … hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court [by strictly enforcing the statute of limitations] made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. … I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will.”

In contrast, McCain said he would appoint judges “who have a history of strict adherence to the Constitution and not legislating from the bench” and noted that waiving the statute of limitations would have been “a trial lawyer's dream.”

Sen. Obama deserves credit for being straight forward and consistent about his belief in outcome-oriented judging. For example, he previously promised to appoint judges who have “the heart, the empathy, to recognize what it's like to be a young teenage mom [and the] empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old.” Many other liberals run away from such an outright endorsement of judicial activism by trying to redefine the term or otherwise muddy the distinction between liberal and conservative views of a judge’s proper role. But Obama embraces an activist judicial philosophy.

No one can deny the feel-good appeal of Obama’s descriptions of outcome-oriented judging. But let’s be honest about the dangers of his philosophy. Obama’s vision transforms judges into super-legislators who second guess the popularly elected legislatures that already weighed the costs, benefits, and fairness of various outcomes when crafting the law at issue – Title VII and its statute of limitations in the Ledbetter case. As CFJ Executive Director Curt Levey noted in his recent article about judicial activism:

“[S]uch progressive descriptions of good judging are little more than a license for unbridled judicial discretion. For example, does understanding what it's like to be African-Americans instruct a judge to rule in favor of racial preferences? Or does empathy for the poor imply that the judge should rule for the poor white job applicant who lost a job to the affluent beneficiary of minority hiring preferences?”

Obama’s Donations in a Class of Their Own

Who donates to Obama? Apparently lawyers do – a lot. Law.com reports that “D.C.’s top law firms have given the Democratic presidential nominee more than triple the cash they’ve donated to Republican Sen. John McCain.” According to the article, four years ago those firms gave $936,000 to the Kerry-Edwards campaign, but that has been topped by the nearly $1.5 million the Obama campaign has received from Big Law in DC.

The article goes on to analyze the reasons behind the incredible support for Obama:

“Obama is likely benefiting from his own legal background: He’s a former president of the Harvard Law Review, Sidley Austin summer associate, and professor of constitutional law at the University of Chicago Law School. And it’s logical for lawyers to be drawn to the campaigns, since a number of issues appeal specifically to the legal-minded, says Kevin Wolf, a partner in Bryan Cave ’s D.C. office. For example, ’Who’s on the next Supreme Court? As a lawyer, I think that’s a very important topic,’ says Wolf, who, according to the Center for Responsive Politics, has bundled as much as $100,000 in contributions for the Obama campaign.”

The Obama advantage across the country is equally striking. While the category of lawyers/law firms holds top positions among in the benefactors of both campaigns, opensecrets.org reveals that $9.3 million has been given to McCain, compared to the $27.7 million which has landed in Obama’s coffers.

There’s little doubt that the makeup of the courts is a top election issue among lawyers. The more interesting question is what the large left-leaning lawyer support will mean for Barack Obama if he’s elected president.

Swing Voters and a President McCain

Many polls seem to favor Obama at this time, and the number of potential swing voters is uncertain. McCain must persuade swing voters in a manner quite severely underused thus far – through emphasizing the stakes that a potential 8-year Obama presidency will have on the federal courts.

Robert A. Levy, chairman of the Cato Institutute, quite aptly elucidates what is at stake in this election concerning judges. Among the items on the upcoming federal judicial docket are:

“privacy, wartime executive power, racial preferences, abortion, property rights, cloning, gay marriage, school choice, the death penalty, [and] gun control.”

But why should this issue matter so much to voters? Quoting Cato constitutional scholar Robert Pilon, Levy makes a critical point concerning the cavalier “living document” view on the Constitution: ‘"If powers can be expanded with impunity, so too can rights be contracted…In fact, a 'living constitution,' interpreted to maximize political discretion, can be worse than no constitution at all, because it preserves the patina of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain."’ Indeed, “when the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name.”

It is imperative that McCain highlight that this is an important historical moment for the courts. If McCain emphasizes the importance of a non-activist judiciary, perhaps he may sway enough people to take him over the top in this election. Ultimately, with one more debate left, he must hammer the virtues of a non-activist judiciary home to the voters – even if the question from the moderator never comes.

"Remember Judges?"

Back in the summer of 2006, then Executive Director of the Committee for Justice, Sean Rushton, asked readers of the National Review Online, “Remember Judges?”. In the piece, Rushton issued a prescient warning that if Senate Republicans did not raise the issue of judges in the 2006 election, the results could be ugly. Of course, Republicans ultimately took a big loss in November of that year. But one has to wonder if the issue of judges was used as a campaign tactic in the current election if we would see more success among the Republican candidates.

A recent analysis of campaigns shows that Senate Republicans seeking reelection generally are not using the issue of judges in their campaigns. Yes, there are some exceptions, such as Senator Lindsey Graham, who boasts on the campaign trail of his role in ushering through President Bush’s judicial nominees. But for the most part, Republicans are silent on the issue. The political landscape has indeed changed since 2002 and 2004, when the issue of judges was used heavily and successfully by Republicans. But perhaps judges in this election should be reexamined. Consider what Rushton wrote in 2006:

“The evidence of the judicial issue's power to help Republicans is well established. In 2002, GOP contenders Wayne Allard (Col.), John Cornyn (Tex.), Jim Talent (Mo.), Saxby Chambliss (Ga.), Lindsey Graham (S.C.), Elizabeth Dole (N.C.), and Norm Coleman (Minn.) all campaigned against Democratic blockage of nominees…Speaking of 2002, White House strategist Karl Rove said, “There's no doubt in my mind that we won races all throughout the country” on the issue. He told the Washington Times that, "We won the Senate race in South Carolina - judges; won the North Carolina race - judges; won the Georgia race - judges.””

Again, we are in different political times than those of 2002, 2004, or even 2006. Bringing judges back into the spotlight might be viewed by the public as a cheap move to try to focus less on the troubled economy. But with Senate polls looking gloomy for the Republicans, perhaps in a tight election reminding voters of Democrats’ stances on judges could make all the difference.

Obama & Oct. 7 Gitmo Decision

U.S. District Judge Ricardo Urbina’s order yesterday that 17 Chinese Muslims held at Guantanamo Bay be released into the United States – specifically, the Washington, DC area – against the President’s wishes, reminds us of two things:

1) The Supreme Court’s June 2008 Boumediene decision, which bestowed the right of habeas corpus on terror suspects held at Gitmo and was denounced by many critics of judicial activism, has very real consequences for Americans. Just ask those Washington, DC area residents who will soon be living down the block from men that until recently were classified as enemy combatants. We hope that these men pose no danger to the United States, but that’s not really the point. In the wake of Boumediene, unelected judges can overrule the President’s decisions concerning the conduct of the War on Terror, so it’s just a matter of time before Americans pay the price.

2) Whether Barack Obama or John McCain appoints federal judges for the next four years will have a profound impact on the War on Terror. McCain denounced the Boumediene decision, while Obama praised it. But most importantly, as we noted in our October 3 e-mail, Obama has been unabashed about his intention to appoint liberal judicial activists to the federal bench. If Obama has his way, Judge Ricardo Urbina will have plenty of like-minded company. If the result is enemy combatants living down the block, will a president who once palled around with domestic terrorists care?

Bush: “Judges Matter to Every American”

Yesterday, President Bush gave a speech in Cincinnati where he described obstructions his nominees have faced from Democrats over the course of his presidency. He used the example of Miguel Estrada to demonstrate how the Advice and Consent Clause of the Constitution has been “subjected to serious abuse.” Bush also offered a challenge to Democrats: “if [they] truly seek a more productive and cooperative relationship in Washington, then they have a perfect opportunity to prove it by giving these nominees the up-or-down vote they deserve [during the upcoming lame duck session]."

Cited in a Washington Post article is the Democrat response:

“Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush's nominees in the past two years than were approved under the previous six years of GOP control.
The White House says 324 of 376 federal court nominees have been confirmed during Bush's tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton's presidency.”

It is unclear which six years the Democrats are referring to. Presumably they mean the last six years of Republican Senate control – the 106th Congress (1999-00), 108th Congress (2003-04), and 109th Congress (2005-06)– in which case their statements are simply misleading, if at all correct. These Republican-controlled Senates had 57, 85, and 35 district court confirmations, and 15, 18, and 16 appeals court confirmations, respectively. This means that, even when generously interpreted to imply individual GOP-controlled Senates, not only were the total confirmations greater for the 106th and 108th Congresses, but they handily outstripped the 58 District Court and 10 Appeals Court judges of the Democrat-controlled 110th Congress.

Some aggregate figures deserve attention also. During Reagan a total of 383 federal judges were confirmed. Under Clinton, that dropped slightly to 377. However, during the Bush administration, only 326 federal judges have been put on the bench. Judicial openings or not, the numbers do not lie.

Will the Court Go Along With the Bailout?

“Handing off huge gobs of power to the executive branch…can raise issues of unconstitutional delegation of authority,” writes a recent law.com article. But most experts are betting that the courts will stay out of it. Roger Pilon of the Cato Institute

“says that some of the as-yet undefined details of the plan might arguably interfere with contractual or property rights. But in that area, as with its court-stripping provisions, the bailout plan is likely to survive Court scrutiny, Pilon guesses. "If the Court starts intruding on this solution, it will undermine confidence in the plan…and the Court is unlikely to want to take on that responsibility.’”

In the 1930s, the Supreme Court initially resisted Franklin Roosevelt’s federal aggrandizement of power (e.g. striking down part of the National Industrial Recovery Act in Schechter v. United States) and later ratified New Deal policy in the 1940s. It is too early to know if the Court will remain silent on the biggest bailout package – and one of the largest interference by the feds in the free market – in history.

But should a carte blanche be given to the executive this time, in light of the current situation? Ever since its initial resistance, the Court has largely rubberstamped government interventionism in the economy unabatedly for 70 years. As New York Law School professor David Schoenbrod notes, “the looseness of the Court's nondelegation doctrine, plus the gravity of the situation, would make the Court unlikely to intervene.”

However, one must wonder how the new powers vested in Paulson and the executive will play out on the Court’s docket. As we blaze through the 21st century, is a resurgence of the courts’ check on economic non-interventionism nothing more than a pipe dream?

Supremes Return; Abortion Tops Obama Court’s Agenda

Today marks the beginning of the last Supreme Court term of the George W. Bush era. The Court’s 2008-09 docket is not yet filled, but it already includes important and colorful cases involving expletives broadcast live, marine mammals annoyed by Navy sonar, the "Seven Aphorisms of Summum" vs. the Ten Commandments, and personally liability for former AG John Ashcroft. Equally important cases this term involve Title IX, the Voting Rights Act, the Pregnancy Discrimination Act, and the Clean Water Act.

For CFJ Executive Director Curt Levey’s thoughts on the new Supreme Court term, click here to see his interview on CBN News.

One result of a Barack Obama win in November would be an increased likelihood of seeing a different lineup on the Court at this time next year. The three Justices most likely to retire – Ruth Bader Ginsburg, John Paul Stevens, and David Souter – are among the Court’s liberals and may well hold out for the next four years if John McCain becomes president.

We won’t speculate about who Obama would appoint to the High Court because it’s little more than a guessing game. Somewhat easier to predict are the legal changes that would result if Obama had a chance to replace Justices Scalia or Kennedy, who will both be 80 years old if they live to see the end of an 8-year Obama presidency. With that in mind, we reprise below our popular “Top Ten Things to Expect from an Obama Supreme Court.”

We call particular attention to item #1 on the list – “requiring taxpayers to fund essentially unlimited abortion rights” – in light of Obama’s extreme views on abortion. If you doubt that characterization, recall that as an Illinois state senator in 2003, Obama led the fight to kill an Illinois bill protecting "infants who are born alive" as the result of an abortion. The Born-Alive Infants Protection bill (Illinois SB 1082) was virtually identical to a federal law of the same name that was enacted in 2002 without a dissenting vote in the House or Senate. The point is that it’s likely Obama will look for Supreme Court nominees who share his out-of-the-mainstream views on abortion.

To be fair, Obama denies that the Illinois bill was virtually identical to the federal law. But FactCheck.org found that

“Obama voted in committee against the 2003 state bill that was nearly identical to the federal act he says he would have supported. Both contained identical clauses saying that nothing in the bills could be construed to affect legal rights of an unborn fetus.”

TOP TEN THINGS TO EXPECT FROM AN OBAMA SUPREME COURT
#10 – expanding and perpetuating the use of racial preferences
#9 – creating new constitutional rights to physician-assisted suicide and human cloning
#8 – expanding judicial oversight of military detentions and CIA interrogations
#7 – prohibiting tuition vouchers for religious schools
#6 – banning the death penalty
#5 – creating new constitutional rights to massive government welfare and medical care programs
#4 – stripping "under God" from the Pledge of Allegiance
#3 – eroding property rights
#2 – ordering all 50 states to bless gay marriage
#1 – requiring taxpayers to fund essentially unlimited abortion rights
(list is based on Stuart Taylor’s 7/26/08 National Journal column)

Biden’s Pride in Ideological Litmus Tests

Call it a gaffe or a moment of unusual frankness, but at the end of last night’s VP debate, Joe Biden admitted that he is proud of applying an ideological litmus test to judicial nominees. Here’s part of the exchange with moderator Gwen Ifill:

IFILL: Can you think of a single issue, policy issue, in which you were forced to change a long-held view in order to accommodate changed circumstances?

BIDEN: Yes, I can. When I got to the United States Senate and went on the Judiciary Committee as a young lawyer, I was of the view … that the only thing that mattered was whether or not a nominee appointed, suggested by the president had a judicial temperament, had not committed a crime of moral turpitude, and was – had been a good student. … [I]t took about five years for me to realize that the ideology of that judge makes a big difference. That's why I led the fight against Judge Bork.

It’s nice to know that Sen. Biden started his Senate career without a politicized view of the Senate’s role in the selection of judges. But the pride he expressed last night in the use of ideological litmus tests should come as no surprise given that

1) As Chairman of the Senate Judiciary Committee during the hearings for Supreme Court nominee Robert Bork, Biden pioneered the use of ideology – not to mention the use of the politics of personal destruction – as a basis for opposing nominees.

2) Biden’s boss has also been surprisingly open about his view of judges as political actors rather than impartial enforcers of the law. Of course, Barack Obama – lacking Biden’s foot-in-mouth disease – phrased it in more euphemistic terms:

"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."

Sounds lovely, but it’s just code for “judges who will favor the outcomes preferred by liberals.” If you doubt that, ask yourself whether President Obama would select a nominee with empathy for unborn babies or for poor white kids denied college admission because of affirmative action policies.

3) Sen. Biden’s party has become increasingly blatant about its preference for ideological litmus tests. Shortly after Sen. Jim Jeffords’s defection put Democrats in control of the Senate, the Judiciary Committee held hearings entitled “Judicial Nominations 2001: Should Ideology Matter?” Democrats answered in the affirmative. Even the liberal Salon.com described the hearings as intended to “make sure that [the coming rough road for judicial nominees] was clear to the administration – and perhaps to create some political cover for when the time comes to oppose would-be judges.”

Finally, we were struck by the strangeness – bordering on inappropriateness – of Sen. Biden’s approach to Ifill’s question. Consider that Biden’s chosen example of his intellectual growth and flexibility involved learning to be more ideological and partisan and to engage in the politics of personal destruction. We doubt that’s what Gwen Ifill had in mind.

The Supreme Court and International Law

Noah Feldman, a Harvard law professor and an adjunct senior fellow at the Council on Foreign Relations, has an interesting piece in last Sunday’s New York Times Magazine that analyzes the relationship between the U.S. Supreme Court and international law. Feldman argues that there are two lenses through which one can view this relationship. The first views the Constitution as facing inward, “toward the Americans who made it, toward their rights and their security.” This view is accepted by Supreme Court Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The other views the Constitution as facing outward, in a paradigm in which “rights similar to those [the Constitution] confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.” This view is accepted by Justices Stevens, Souter, Ginsburg, and Breyer.

Feldman states that each of these views of the Constitution in international law has recently enjoyed a victory. The liberals, with the aid of Justice Kennedy and an outward-looking Constitution, prevailed in the much-publicized Boumediene v. Bush, a decision that granted detainees at Guantanamo Bay the ability to challenge, in U.S. courts, their detention. Conservatives, with the aid of Justice Kennedy and an inward-looking Constitution, scored a recent victory in Medellin v. Texas. In Medellin, the International Court of Justice declared Jose Medellin’s murder conviction to be in violation of the Vienna Convention on Consular Relations, a treaty which guaranteed a right of foreign citizens to speak to the embassies of their respective countries while detained. The Supreme Court, however, held that Medellin, under the rules of postconviction judicial review, could not ask the courts to consider legal arguments that were not first raised at trial. The Court also ruled broadly that treaties obligating the United States to follow rulings by the International Court were not binding law, unless Congress passed a separate statute explicitly making the rulings binding. Feldman writes:

“The key vote in both cases was that of Kennedy. In both cases, he acted to uphold the prerogatives of the Supreme Court – against the president and Congress in the Guantanamo case, and against the international court in the Medellin decision. And Kennedy does argue that such judicial supremacy is crucial to the rule of law. But the other justices did not see the cases in those terms. To them, the cases were not primarily about the perennial issue of the division of powers between the different branches of government. To these eight justices, the cases were about what sort of Constitution we have: either outward-facing or inward-looking.”

Feldman's article raises an interesting question: Do we have a Constitution that is “outward-facing” and confers rights on all world citizens, or is our Constitution “inward-facing” and centered only on the rights of Americans?

NYT: American Legal Influence is Waning

A recent article in the New York Times claims that American “legal influence is waning” in foreign courts around the world. The author examines how many legal experts seem to think that the unpopularity of American foreign policy, reluctance to utilize foreign court decisions, and an emergence of legal precedents in newly-formed democracies have all contributed to this decline.

One of the most interesting reasons cited also seems to be the activist culture of many foreign courts. Charles Fried, a law professor and former Reagan solicitor general, states: ‘“What we have had in the last 20 or 30 years…is an enormous coup d’état on the part of judiciaries everywhere — the European Court of Human Rights, Canada, South Africa, Israel.” In terms of judicial activism, he said, “they’ve lapped us.”’

Declining influence seems like a cheap price to pay for centrist courts.