May 03, 2009

Obama on Judges: Being Qualified is Not Enough

As soon as Souter's retirement leaked, Drudge had a headline reminding everyone that Obama had voted against both Justice Roberts and Alito, threatening to filibuster the latter.  Obama often talks of bipartisanship but on judges he was one of the most partisan members of the Senate (only two voted against Roberts).  What does this mean now that Obama is in the position to nominate judges?  Victor David Hanson raises some interesting points in this regard.

"Given the fact that Barack Obama voted against both Justices Alito and Roberts, (and wanted to filibuster Alito) would he object should Republicans en masse simply say no to his new liberal Supreme Court judicial nominee? As I recall Obama’s comments, he simply confessed two things: one, the two nominees were qualified; two, their politics made them too unsympathetic to his own political agenda, so they should be rejected.

Remember Obama’s assessment of Alito that had nothing to do with the law and everything to do with politics ('He’s a smart guy, there’s no indication that he is not a man of good character. But, when you look at his record, what is clear is that when it comes to his understanding of the Constitution, he consistently sides on behalf of the powerful against the powerless.'), and Roberts ('In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.')"

There will be opposition to whomever Obama picks, but I am interested to see the way such opposition is covered by the media and addressed by the Obama administration.  Obama has all but endorsed the idea that it is acceptable to vote against a nominee for purely political reasons.  It would be pure hypocrisy for him or his fawning media to apply a greater test to Republican opposition than Obama applied to himself.  I wouldn't be the least bit surprised to see Obama attempt to walk back his senatorial rhetoric in advance of a nominee to blunt such a "hypocrisy" charge.

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