Moderate Obama Judges; Lower Courts

A pair of articles on the front page of yesterday’s Washington Post reach the same conclusion about where judicial picks are having the greatest impact, with one article looking forward and the other backward:

“With the Supreme Court's conservative direction unlikely to change anytime soon, it is the lower courts – which dispense almost all federal justice – where Obama can assert his greatest influence. … ‘In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.’”(quoting U. of Pittsburgh law professor Arthur Hellman)

“Although the impact of Bush's judicial appointments is most often noticed at the Supreme Court, it has played out much more frequently and more importantly [in the D.C. Circuit] and in the nation's 12 other appellate courts.”

We think the lesson for GOP senators and conservative activists is that Supreme Court speculation should not be allowed to distract attention from limiting the damage done to the U.S. Courts of Appeal during the Obama presidency. President Obama may or may not have a chance to appoint one or more Supreme Court Justices in the next four years, but he will begin to push the circuit courts – where most law is made – in the direction of judicial activism within months of assuming office. The only question is how fast and how far.

The first Post article, by reporter Jerry Markon, goes on to ask whether Obama’s generally moderate Cabinet picks point towards moderation in his selection of judges. Probably not the article suggests:

“Although his Cabinet choices have won praise from Republicans as centrist, Obama's past statements indicate a generally liberal judicial philosophy, one that favors Supreme Court justices and other judges who back abortion rights.”

In the same article, CFJ’s Curt Levey sums up the reasons for concern:

“Conservatives said they are hoping for moderate nominees but worry that ‘judges will be an issue where Obama throws a lot of crumbs to his political base,’ said Curt Levey … ‘People are worried. Obama has been unusually unabashed about believing in an activist role for judges.’”

The Obama quote used to illustrate his “generally liberal judicial philosophy [favoring] abortion rights” strikes us as ironic in that it could easily be read as a recipe for pro-life judges. Specifically, in a CNN interview this May, Obama said he wanted judges who sympathize with

“those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves.”

Sounds to us like a perfect description of unborn babies. We mention this to underscore the fact that constitutional law professor Barack Obama and the many other defenders of judicial activism have never been able to explain why their belief in a Constitution which evolves to protect the vulnerable leaves out not just unborn babies, but also crime victims, small farmers and home owners, victims of reverse discrimination by diversity-happy colleges and corporations, and most importantly, ordinary citizens who don’t want their votes to be overridden by judicial usurpation.

Could it be that the only real principle behind the Obama judicial “philosophy” is that judges should do whatever it takes to reach liberal outcomes?