- The Washington Times - Thursday, October 30, 2008


One of the biggest and most long-lasting “changes” to expect if Barack Obama becomes president will be the kinds of federal judges he appoints. These include Supreme Court justices, as well as other federal justices across the country, all with lifetime tenure.

Mr. Obama has stated very clearly what kinds of Supreme Court justices he wants - those with “the empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”

Like so many things Mr. Obama says, it may sound nice if you don’t stop and think - and chilling if you do stop and think. Do we really want judges who decide cases based on who you are rather than on the facts and the law? If the case involves a white man versus a black woman, should the judge decide that case differently than if both litigants are of the same race or sex? The kind of criteria Barack Obama promotes could have gotten three young men at Duke University sent to prison for a crime neither they nor anybody else committed.

Didn’t we spend decades in America, and centuries in Western civilization, trying to get away from the idea that who you are determines your legal rights? What kind of judges are we talking about?

A classic example is federal Judge H. Lee Sarokin, who could have bankrupted a small New Jersey town because they decided to stop putting up with belligerent homeless men who kept disrupting their local public library. Judge Sarokin’s rulings threatened the town with heavy damage awards, and the town settled the case by paying $150,000 to the leading disrupter of its public library.

Bill Clinton elevated Judge Sarokin from the district court to the Circuit Court of Appeals. Would Barack Obama elevate him - or others like him - to the Supreme Court? Judge Sarokin certainly fits Mr. Obama’s job description for a Supreme Court justice.

A court case should not depend on who you are and who the judge is. We are supposed to be a country with “the rule of law and not of men.” Like all human beings, Americans haven’t always lived up to our ideals. But Mr. Obama proposes the explicit repudiation of that ideal itself.

That is certainly “change,” but is it one that most Americans believe in? Or is it something we may end up with anyway, just because too many voters cannot be bothered to look beyond rhetoric and style?

We can vote a president out of office at the next election if we don’t like him. But we can never vote out the federal judges he appoints in courts across the country, including justices of the Supreme Court.

The kind of judges Barack Obama wants to appoint can still be siding with criminals or terrorists during the lifetimes of your children and grandchildren.

The Constitution of the United States will not mean much if judges carry out Mr. Obama’s vision of the Constitution as “a living document” - that is, something judges should feel free to change by “interpretation” to favor particular individuals, groups or causes.

We have already seen where that leads with the 2005 Kelo Supreme Court decision that allows local politicians to take people’s homes or businesses and transfer that property to others. Almost invariably, these are the homes of working class people and small neighborhood businesses confiscated under the government’s power of eminent domain. And almost invariably they are transferred to developers who will build shopping malls, hotels or other businesses that will bring in more tax revenue.

The Constitution protected private property precisely to prevent such abuses of political power, leaving a small exception when property is taken for “public use,” such as the government’s building a reservoir or a highway. But just by expanding “public use” to mean “public purpose” - which can be anything - the Supreme Court opened the floodgates.

That’s not “a living Constitution.” That’s a dying Constitution - and an Obama presidency can kill it off.

Thomas Sowell is a nationally syndicated columnist.

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