Voters should carefully consider the future direction of the Supreme Court and other federal courts, if the Democrats dominate Congress and Barack Obama serves as president. They should begin by asking a key question. What is Mr. Obama’s judicial philosophy?
In a 2001 interview with Chicago public radio station WBEZ-FM, Mr. Obama explained his view of our judiciary - one that goes well beyond the typical liberal penchant for legislating from the bench and includes revolutionary change. Mr. Obama said the court of Chief Justice Earl Warren, from 1953 to 1969, was not “radical” because he did not wander into the area of redistributive justice: “To that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical.” Most court historians believe that the Warren court was the most radical in American history. Apparently, it wasn’t radical enough for Mr. Obama.
Mr. Obama states that his primary criteria in selecting judges is that they show “empathy” for the weak and underprivileged. He voted against two of the Bush administration appointments to the Supreme Court, Chief Justice John Roberts and Justice Sam Alito, because they did not side often enough with those who are powerless. In other words, Mr. Obama wants our judges to have a bias in favor of an entire class of individuals. That doesn’t seem fair-minded. He forgets that in America equality before the law is the cornerstone of our system of justice. That principle undergirds our legal code and our democracy.
The 2001 interview was most instructive in telling us that Mr. Obama’s understanding of “radical” differs from that of average Americans. Let us put this in perspective: Justice Warren believed that judicial power should be used to make social progress. While Justice Warren wasn’t always wrong - take desegregation and civil rights - he did unnecessarily politicize the judiciary. He also gave criminals more rights, ended school prayer and favored an unprecedented expansion of the powers of the federal government.
President Eisenhower famously stated that nominating Justice Warren was “the biggest damned-fool mistake I ever made.” The American people should ponder whether this model of justice is one we need to adopt at this juncture in our history. Within the next eight years, the president is likely to appoint two to four justices to the Supreme Court and scores of judges to the lower federal courts.
What kind of “change” does Mr. Obama favor? Does America really need a Supreme Court more radical than the Warren court?
In the editorial “What if Democrats win it all?” in Friday’s editions we should have said the next president would be America’s 44th.