Posted by Rojas @ 12:09 am on October 29th 2008

This is still the scariest thing Barack Obama has said about the judiciary.

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.

Seriously…the man said THIS, and we’re concerned that he might also favor income redistribution?


  1. What we do not know about the man is of a growing concern to me. I blame a media that is part of his campaign and always will. Shame on them.

    Comment by James — 10/29/2008 @ 12:15 am

  2. Well, actually, I found out about that quote from the media. It just seemed that nobody except me cared, so I guess it kind of faded into the background.

    Comment by Rojas — 10/29/2008 @ 12:16 am

  3. I rest my case.

    Comment by James — 10/29/2008 @ 12:17 am

  4. Repost from the other thread:

    And Obama gets a bit more specific than he has previously on his own standards for justices:

    Generally, the court is institutionally conservative. And what I mean by that is, it’s not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.

    I’m not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today…. So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.

    I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.

    That, I think is the kind of justice that I’m looking for–somebody who respects the law, doesn’t think that they should be making law…but also has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice.

    That is both liberal and decidedly un-radical at the same time. I think where we are tripping up is the assumption that it is definitionally impossible to be both: I disagree.

    In fact, if Souter and Breyer are his two favorite judges on the court and he throws in for justices of that ilk, and he winds up replacing Ginsberg and Stevens, he would actually be tilting the court towards a more moderate bent (i.e. more conservative than it is now, broadly defined).

    Comment by Brad — 10/29/2008 @ 12:18 am

  5. That, I think is the kind of justice that I’m looking for–somebody who respects the law, doesn’t think that they should be making law…

    Now that is mainstream I think. However, unless I am mistaken both Souter and Breyer voted with the majority on the eminent domain ruling not long ago that was a travesty and affront to private property ownership.

    I am unimpressed.

    Comment by James — 10/29/2008 @ 12:34 am

  6. And here I was thinking they were supposed to interpret the Constitution, not pander to special interest groups.

    Comment by K_Wright — 10/29/2008 @ 1:03 am

  7. Speaking of interpretation…

    It’s interesting, you can interpret Rojas’ block quote as an endorsement of special interest groups, and individually, I do see them listed ‘groups’ as such. But take them all, and all the others not listed(I’m interpreting the list as incomplete) and I see America.

    Comment by Mortexai — 10/29/2008 @ 3:07 am

  8. I don’t get why that’s very scary either.

    That quote above says judges should care about people.

    I find it hard to equate that to some over-arching nefarious judicial standard, as Rojas is apparently trying to do. I also find it pretty hard to disagree with, on the face of it.

    Sounds like a meaningless piece of 100% inoffensive fluff to me (vs. an analytical constitutional schema or whatever), on par with “our troops are great” or “American workers can do anything”. But what do I know, I’m a Marxist zombie clone.

    Comment by Brad — 10/29/2008 @ 3:37 am

  9. Hey, I’m right there with you, though I might be arriving there in a different bus.

    Comment by Mortexai — 10/29/2008 @ 3:42 am

  10. In fact I think you just came to the same interpretation I did and tried to convey, but perhaps failed. Damn you Jim Beam.

    Comment by Mortexai — 10/29/2008 @ 3:44 am

  11. I wanted to ask Rojas if he could explain why this is bad, but I think the answer would be scary.

    Comment by fred — 10/29/2008 @ 7:11 am

  12. That quote above says judges should care about people.

    Firstly, it’s more than just ‘should’, it’s ‘must’. Additionally, for originalists or constructivists and the like — and one would presumably include former Ron Paul supporters in this, surely — it should be pretty much irrelevant whether they care about people because they are, as per those points of view, there to interpret the law…

    Comment by Adam — 10/29/2008 @ 8:21 am

  13. Oh, that’s a good one.

    Comment by fred — 10/29/2008 @ 12:47 pm

  14. We’re now parsing the difference between “should” and “must” in a statement saying it’s important to care about disadvantaged people and taking that as a terrifying omen of the constitutional law scholar’s potential supreme court justices?


    Hey, I’ll freely admit that that’s a pretty touchy-feely liberal thing to say, I’m just not sure that it says much of anything substantive about his judicial standards. Maybe it does though and he nominates Maury Povich.

    If that’s the case, I look forward to the next court’s docket being 1/3 executive authority cases, 1/3 privacy defenses, and 1/3 baby daddy investigations.

    Comment by Brad — 10/29/2008 @ 1:22 pm

  15. I think that when Barack Obama stands up in front of Planned Parenthood and tells them that he intends to appoint judges who are sympathetic to specific minority perspectives, it is not very hard to infer that he believes that the existing court system is insufficiently sympathetic to those perspectives. And that he intends to do something about it.

    This is fine if you believe that the proper function of a court system is to ameliorate social inequality. If you believe, however, is that the function of the judiciary is to provide neutral resolution of legal disputes–to administer an objective system of law–then this is going to pose a problem.

    The question is: are we ruled by laws, or by men? Non-objective law is not law at all. It is just another manifestation of the preferences of the ruling class. It creates a situation where the citizens of a society have no reliable way of knowing whether a behavior is permitted or proscribed. It puts the jurist in the impossible role of judging not based on facts, but based on intentions. It is a horrendous can of worms that ought not be opened.

    Barack Obama is explicitly, enthusiastically interested in ensuring that laws are administered in such a way as to benefit one particular class of persons. That is wrong, and it flies in the face of the entire concept of rule of law.

    Comment by Rojas — 10/29/2008 @ 2:19 pm

  16. We’re now parsing the difference between “should” and “must” in a statement saying it’s important to care about disadvantaged people and taking that as a terrifying omen of the constitutional law scholar’s potential supreme court justices?

    The reason it’s important is that he is going to use it as a criteria for selecting Justices. That’s why ‘must’ is different to some vaguer statement about the desirability of compassion (which is also pretty stupid).

    Comment by Adam — 10/29/2008 @ 2:23 pm

  17. Rojas: fair enough I guess. I think you’re reading too much into it, but I’ve made that clear. I don’t disagree that justices should be objective arbiters, but it seems a little hysteric to me that a quote in front of Planned Parenthood saying justices should have compassion amounts to a clear desire of Barack Obama to overturn the foundations of American jurisprudence. If anything, it would mean, if interpreted your way, Ruth Bader Ginsberg-esque justices (to replace, of course, Ruth Bader Ginsberg). Interestingly though:

    This is fine if you believe that the proper function of a court system is to ameliorate social inequality.

    Any thoughts on the other “function of the supreme court” excerpt we’ve been talking about, wherein he addresses that point directly (hint: he says explicitly “I think the court system is a poor vehicle for ameliorating social inequality”) and goes so far as to name specific justices on the court he would like to seem more in the vein of who would be less “social justice”-y than the ones he’d likely be replacing?

    Comment by Brad — 10/29/2008 @ 2:50 pm

  18. This one?

    that one of the roles of the courts is to protect people who don’t have a voice.

    My thoughts on this are: Barack Obama is mistaken. Badly so.

    The idea that the role of the courts is to “protect people who don’t have a voice” appears exactly nowhere in the founding documents of this nation. It would, furthermore, horrify the founders to discover that the Supreme Court has taken that role upon itself.

    The power to protect one class of people is indistinguishable from the power to crush another–indeed, it is inevitably the same thing when the interests of those two parties come into conflict. One can resolve such conflicts either through objective law or through judicial whim.

    I place my faith in the rule of objective law. Barack Obama places his faith in the compassion of those justices whom he would in his wisdom select. We’ve spent the last eight years observing what happens when the whims of Presidential appointees trump actual written laws. Yet somehow the people who were angriest about Bush’s practices are just fine with–indeed, eager to see–Obama doing the same thing to the judiciary.

    Both of these groups–Bush syncophants and pro-Obama critical legal theorists–believe that the benefits of the rule of law are contingent on the quality of the personal judgment of the ruler. That so long as the arbitrer’s “heart is in the right place,” the law should be treated as a rough guideline rather than as an inflexible boundary. I do not agree. At all.

    Comment by Rojas — 10/29/2008 @ 3:02 pm

  19. Minority rights against the tyranny of the majority is not in the constitution and would have been a foreign concept to the founding fathers and the modern history of jurisprudence?

    I get the gist of what you’re saying in your larger point about the merits of objectivity, and agree.

    Comment by Brad — 10/29/2008 @ 3:05 pm

  20. Belief in the rights of political minorities is not the same thing as belief in the rights of the disadvantaged, which is what Obama asserts is vital.

    Nor is it the same as asserting that the protection of those rights ought to be the purpose of the US Supreme Court, or of the judiciary generally. And it is CERTAINLY not the same thing as saying that the courts may play fast and loose with the law in pursuit of the goal of protecting the disadvantaged.

    Comment by Rojas — 10/29/2008 @ 3:31 pm

  21. People who criticized Bush are eager to see Obama take the courts beyond the law? Impressive analysis.

    Comment by fred — 10/29/2008 @ 3:44 pm

  22. Um…yes, that is precisely my contention, fred. They believe that some may supercede the rule of law, but not others.

    If I’m wrong, explain why.

    Comment by Rojas — 10/29/2008 @ 3:50 pm

  23. My contention is pretty clearly, fred, that I’m just not seeing much fire here for the smoke.

    We have two statements—one direct, one bit of touchy-feely waffle—as to the role of the courts in dictating social equality. In one, Obama says courts should “care” about the disadvantaged (whatever that means). In the other, asked very specifically about the role of the courts as vehicles for redressing social inequality, he leans away from it and takes a fairly mainstream conservative position. He then mentions, by name, the two most moderate judges on the court at the time as his ideals.

    It just strikes me that one is a very direct answer to the question—indeed, he was literally asked the very question Rojas is begging. I’m not sure why we’re disregarding that one, if we’re looking for cues.

    Comment by Brad — 10/29/2008 @ 3:52 pm

  24. That, and it seems a major postulate to say that if you were criticizing Bush for his handling of the courts, you now eagerly want Obama to compensate with corruption of his own.

    Comment by fred — 10/29/2008 @ 3:58 pm

  25. Well, you’re going to read whatever you want into it then. Fair enough man, do what you gotta do.

    Comment by Brad — 10/29/2008 @ 4:00 pm

  26. There’s a greater meaning hidden beyond the printed words?

    Comment by fred — 10/29/2008 @ 4:15 pm

  27. Nope. Just the plain one, really.

    Comment by Brad — 10/29/2008 @ 4:17 pm

  28. In one, Obama says courts should “care” about the disadvantaged (whatever that means).

    He goes rather beyond that in specifically stating that empathy is one of his criteria for selecting Justices. That’s beyond it being a desirable quality and moving in the direction of being a litmus test (and we know how annoying those are).

    Comment by Adam — 10/29/2008 @ 7:25 pm

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