Tag: supreme court nomination

Obama on ‘Conservative Judicial Activism’

Speaking to reporters last evening on Air Force One, in the context of his upcoming Supreme Court nomination, President Obama warned of “conservative judicial activism.” “In the ’60s and ’70s, the feeling was, is [sic] that liberals were guilty of that kind of approach,” he said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.” That error? “Not showing appropriate deference to the decision of lawmakers,” the AP reports.

Really. And which “activist” decisions from the ’60s and ’70s does this former constitutional law instructor have in mind? Griswold v. Connecticut (1965), where the Court found unconstitutional a state statute criminalizing the sale and use of contraceptives? Loving v. Virginia (1967), the same, concerning inter-racial marriage?

The list of Court decisions overturning “the will of the people,” as reflected by their legislatures, is long; and not all are correct. But viewing those decisions through the lens of “activism” and “restraint” is one of the least useful ways of determining that question. In fact, too often those labels distract us from the real issue, namely, disagreement over the meaning or implications of the constitutional, statutory, or regulatory provisions before the Court.

Obama’s objective, however, is hardly disguised. He fears that a “conservative” Court will be “active” in finding constitutional constraints on his agenda. We saw that in his reaction to the Court’s decision in January throwing out parts of the McCain-Feingold campaign finance law. And with more than 20 states now challenging ObamaCare, he’d like to have a Court “showing appropriate deference” to Congress.

On Monday the White House Office of Public Engagement invited me and three others over for an “off-the-record” discussion on the upcoming nomination. After making clear that my comments, at least, would not be off the record, I noted the obvious, that the president’s nominee would likely be in a tough spot during the Senate confirmation hearings, because one of the central questions he or she will have to address is whether, in light of ObamaCare, there are any longer any limits on the power of Congress to regulate. After all, if Congress can now order individuals to buy a product from a private company, what can’t it order?

In his comments last evening, Obama said judges should be deferential “as long as core constitutional values are observed.” Is there any constitutional value more fundamental than limited government, designed to secure individual liberty? The Constitution authorizes courts to actively secure that value, failing which their deference amounts to dereliction of duty.

Opening Day at Judiciary Park: Sotomayor On Deck

The first day of the Sotomayor hearings yielded many baseball references but little in the way of home runs and strikeouts—or surprises. Democrats lauded Sotomayor’s rags-to-riches story and career achievements. Republicans questioned the “wise Latina’s” commitment to objectivity, whether she would be a “judicial activist” and—most interesting to me—whether she planned to use foreign law in helping her to interpret the Constitution. These would clearly be the lines of attack and counterattack.

It was all “set pieces”—prepared statements that often said more about the senators themselves than about the nominee. The stars of the show were unquestionably Senators Sessions (R-AL), Graham (R-SC), and Franken (D-SNLMN). Sessions, the ranking member, is armed for bear and has clearly been reading the memos my colleagues around town have been writing. Graham marches to his own (very candid) drummer, pronouncing that Sotomayor would be confirmed unless she had a “complete meltdown.” Franken… well he’s just happy to be on the big stage on his sixth day in office.

Assuming Sotomayor is confirmed, however, this will not be that big a political victory for President Obama. With Democrats holding a 60-40 margin in the Senate, confirmation has long been expected, and the political markets have already discounted for it.  The president will likely see a temporary blip of support, particularly among Hispanics, but not as much as one might think—because those who are high on Sotomayor already support Obama.  Moreover, most people will soon forget the Supreme Court and go back to worrying about their personal economic situation—which the president’s policies are certainly not helping.

In a way, this week’s hearings and the confirmation process generally have more downside potential for the administration than upside.  Not because of the small chance Sotomayor won’t get confirmed—which would be a real blow—but because issues such as affirmative action, property rights, gun rights, and the use of foreign law are all being thrust to the forefront of the news cycle.  These issues, and the debate over judicial philosophy generally, are all winners for the Republicans—if they play their cards right.

In any event, tomorrow the real fun begins—with the blue team tossing softballs at the nominee and the red team sending the high heat.

Should Judges ‘Have the Back’ of Police Officers?

Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police.  Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups.  The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate.   The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority.  To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.

As it happens, The New York Times has a story today about one Jeffrey Deskovic.  He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate.  When there was no DNA match, prosecutors told the jury it didn’t really matter.  Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?

On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.