McConnell’s Warning re Obama Judges

At the just-concluded annual convention of the Federalist Society, GOP Senate Leader Mitch McConnell noted the potential threat to the rule of law posed by Barack Obama’s judicial nominations:

“America will soon have a new president, a president with some very unorthodox views about the nomination and confirmation of federal judges.”

Sen. McConnell pointed to Obama’s rhetoric and voting record:

“After noting that [now-Chief Justice] Roberts clearly had the intellect and qualifications to sit on the Supreme Court, he nevertheless opposed the confirmation because, as he said, he gave more weight to Judge Roberts’ ‘political philosophy.’ … [Obama] has explicitly stated on the campaign trail that the primary criteria he will use in choosing judicial nominees is their ability to empathize with certain groups.”

For those who believe in the rule of law – as opposed to judicial activism – there is “no more urgent moment” than now, McConnell concluded. Describing what we will call the McConnell Standard, the GOP Leader drew a line in the sand:

“If President Obama’s top criterion in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law. There is one side that judges should be on, and that’s the side of the law. This does not change in an Obama Administration.”

Sen. McConnell also hinted that potential Obama Supreme Court nominee Cass Sunstein of Harvard Law School is on the wrong side of the line. McConnell recalled “the infamous retreat Democrats held early in 2001 at which Professors [Larry] Tribe and [Cass] Sunstein suggested changing the ground rules on judicial confirmations” to include an ideological litmus test. As a result of Sunstein’s and Tribe’s advice,

“Democrats concluded … that [President Bush] should be entitled to little, if any, deference. … Instead of the traditional standards of legal ability, integrity, temperament, and, above all, fealty to the law, Democrats were now insisting on other considerations, like sympathy for certain groups. … [P]olitical ideology – that is, ‘whose side’ they thought a jurist was going to be on – was now the paramount criterion for confirmation.”

McConnell’s full remarks to the Federalist Society are available from CFJ upon request.

An Examination of the Election Results

As stated in an earlier post, the issue of judges did not play an important role in the election of 2008. The effectiveness of leaving judges out has been challenged by some, and exit polls taken on Election Day help to shed light on the issue.

The exit polls show that we are still a center right country, with 34% claiming to be conservative, 44% moderate, and only 22% liberal. When asked if future appointments to the Supreme Court were an important factor in deciding for whom to vote, 7% of respondents said it was the most important factor, and 47% stated that it was an important factor. Curiously, of the 7% of people who stated that the Supreme Court was the most important factor in their vote, 57% voted for Obama. These numbers demonstrate that conservatives could do a better job reminding people of the dangers of judicial activism.

With 63% of voters saying that the economy was their top issue, some might argue that it was a foregone conclusion that voters would overlook judges in this election. But with 78% of voters describing themselves as moderate or conservative, keeping activist judges at bay will remain an important and popular strategy for conservatives in the future.

GOP Senators on Obama’s Judges

The election is barely over and already GOP senators are discussing their strategy for handling Barack Obama’s judicial nominees. From yesterday’s Roll Call:

“[Republican Steering Committee Chairman Jim] DeMint, noting that Democrats successfully used the chamber to block several of President Bush’s nominees to circuit courts, warned that Obama and Senate Democrats will look to pack the lower courts with liberal judges. ... ‘They’re going to come back and try to fill those seats. ... If Republicans don’t make up their mind to stop this, we’re going to lose ground we can’t make up for generations. I think its going to be a key issue,’ DeMint said.”

We agree. Barack Obama has talked unabashedly about his activist judicial philosophy, specifically his belief that the rule of law must give way to “empathy” for the “poor, or African-American, or gay, or disabled.” If Obama plans to pack the federal courts with judges who don’t feel bound by the rule of law, GOP senators must unite in principled opposition, especially where the vacancy is the result of Democratic obstruction under President Bush. As DeMint suggests in the article, judges are one of the key issues on which the Senate’s GOP leadership must boldly step up to the plate.

And this from the Judiciary Committee’s ranking member, Arlen Specter:

“‘I wouldn’t want to anticipate any special difficulties in the future,’ Specter said, arguing that Republicans should allow the [judicial nomination] process to play itself out before the GOP decides to block a particular nominee. ‘Anybody who makes a decision up front to block them is being precipitous. I think we ought to give the new president a chance and see what he does,’ Specter said.”

Roll Call attempts to portray the difference in DeMint’s and Specter’s tone as “tension” within the Republican Conference. Granted, that makes for a more interesting story, but we agree with Sen. Specter as heartily as we do with Sen. DeMint. It would be unprincipled for Republicans to oppose the new President’s nominees up front.

Granted, Senate Democrats did just that in 2001, when the Democrat-controlled Judiciary Committee held hearings – entitled “Should Ideology Matter?” – that even the liberal Salon.com described as intended to “make sure that [the coming rough road for judicial nominees] was clear to the administration.” Nonetheless, Republicans should give Obama a chance to disprove their worst fears. As is true on many issues, we don’t yet know if Obama’s selection of judges will reflect his liberal heart or his non-partisan promises. Moreover, to select nominees for obstruction first and ask questions later would be to commit to the distortion of their records and the politics of personal destruction. Those tactics worked pretty well for Democrats these last eight years, but GOP opposition to nominees should be more principled.

Judges Issue Underused, Election Results Show

As we and many others have noted, the judges issue was one of the keys to GOP electoral success in the elections of 2000, 2002, and 2004. It "was one of Bush's best issues in the campaigns of 2000 and 2004" (Larry Sabato, University of Virginia), and on the Senate level, there’s “no doubt” the GOP “won races all throughout the country” using the issue (Karl Rove). In 2006 and 2008, the GOP shied away from the judges issue and suffered big losses. Undoubtedly, there are many reasons for those losses, but a careful look at yesterday’s election results and exit polls demonstrates that failure to emphasize the judges issue was an important contributing factor. Consider the following:

1) What are the first issues that come to Americans’ minds when the role of the courts is discussed? Abortion, gay marriage, and affirmative action are at the top of the list. This year, nine state ballot initiatives – in California, Colorado, Florida, Nebraska, South Dakota, Arizona and Arkansas – dealt with those issues. Each of the nine initiatives were motivated largely or wholly by court rulings that were perceived to be examples of liberal judicial activism, specifically U.S. Supreme Court rulings on abortion and affirmative action in college admissions, and the reality or possibility of state supreme court rulings on gay marriage. In six of the nine cases, the conservative position on the initiative – e.g., against gay marriage in California – ran ahead of John McCain. Even if McCain and his GOP colleagues were squeamish about tackling these controversial issues directly, they could have used the judges issue to tap into the conservative leanings of voters reflected in the initiative results.

2) A possible counterargument is that, while voters are concerned about these social issues, they just don’t care about the courts. Yesterday’s exit polls prove that argument wrong. Even without much attention given to the judges issue this fall, 75% of voters nationwide said that Supreme Court appointments were a factor in their vote for President, and 53% said it was an important factor. Those figures shouldn’t surprise anyone given that even the liberal ABA found that Americans, by an almost 2-to-1 margin, believe judicial activism “seems to have reached a crisis” (4 ABA Journal eReport 40, 9/30/05).

3) It’s also possible that GOP candidates avoided judges and social issues in the belief that this was a change election rather than a values election. If so, they were mistaken. While 34% of voters nationwide said that the ability to “bring change” was the candidate quality that mattered most in the presidential race, nearly as many – 30% – said sharing “my values” was most important. And that’s in a campaign in which values issues received little attention. Had Sen. McCain put greater focus on values issues – for example, by talking more about judicial activism – he would surely have benefited, since voters focused on values supported McCain over Obama by more than a 2-to-1 margin (66% to 31%).

People of California to the CA Supreme Court :

SLLLLAAAAP!

That's what you get for making up unenumerated "constitutional rights" out of thin air.

Bush’s Judicial Legacy

In this law.com article, Tony Mauro examines Bush’s impact on the Supreme Court. Mauro notes that even before his election in 2000, Bush had already given a lot of thought to the importance of good judicial nominees. However, Mauro adds, after eight years of Bush appointments the anti-activist transformation of the Court begun at Bush’s Crawford ranch may still be somewhat in its infancy. After all,

“in a conservative paradise, the Court would not have expanded habeas rights for Guantánamo detainees as it did in Boumediene v. Bush, nor would it have declared yet another category of defendants—child rapists whose victims survive—immune from the death penalty, as it did in Kennedy v. Louisiana. The Court pleased the business community by slashing the punitive damages stemming from the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, but … [e]mployment discrimination cases also went against employers, by and large”

Cornell Law School’s Michael Dorf observes that

“the mantra from liberals for the last four elections, at least, has been that the Supreme Court is ’one vote away’ from overturning cherished precedents like Roe v. Wade. Dorf notes that on issues such as race, abortion, and gay rights, “things have moved considerably. But we are still one vote away.’”

Mauro explains that the current center-right court can be attributed to a “dramatic chronology,” which includes the retirement of Justice Sandra Day O’Connor, the untimely death of Chief Justice William Rehnquist, and the unsuccessful nomination of Harriet Miers. It was “crucial to the almost accidental success of Bush’s Supreme Court nominations” that events unfolded the way that they did concerning the nominations of Alito and Roberts. But no matter the luck that led to its formation, the current court in its first term alone “brought enough conservative victories” to cement Bush’s legacy.

But how long might this legacy last? With Obama predicted to win the White House and a filibuster-proof Senate looming, what David Garrow of the University of Cambridge calls “‘the most successful legacy of Bush’s two terms” may be short lived.