October 29, 2008

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.”