Thursday, May 15, 2008

The Obama Court

In my column today in the Madison County Journal, I write about the difference between a John McCain judiciary and a Barack Obama judiciary. Here is an excerpt:

Pickering, Wallace, and Southwick believe in the Constitution; they believe we are a nation of laws and not of men; they believe role of a judge is to interpret the laws and Constitution as written, and not to legislate from the bench or impose their own beliefs and values onto others through their rulings.

Senator John McCain shares that perspective.

Last week in a speech on his judicial philosophy delivered at Wake Forest University, McCain promised if elected President: "I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist - jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States."

Sen. Barack Obama, who appears to be inching toward the Democratic nomination, told a very different philosophy to CNN in a recent interview: "What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings. And in those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v. Board of Education."

Obama is a former constitutional law professor. He knows what he is saying. Obama believes a judge should interpret vague laws based on his own opinions, his own ethics, his own values, and weight those beliefs in favor of the underdog. That is the essence of liberal judicial activism.

Judges appealing to their own perspectives, ethics, and morals ruled in Dredd Scott v Sandford that blacks were not citizens; and judges seeking the law in themselves - as Obama advocates - ruled in Plessy v Ferguson to create separate but equal policies.

Some may say it is absurd to put Obama on the same side as these horrendous Supreme Court rulings. However, if activist judges had not ignored originalism in the former, nor disregarded the Fourteenth Amendment in the latter, America's journey to equality would have been achieved earlier.

When we become a nation of men and not laws, even if those men have good intentions, we have injustice.

You can read the full column here: PERRY/Exercising judicial restraint

Tuesday, May 6, 2008

Pickering on McCain's "Gang of 14"

The Republican National Lawyers Association and Southern Appeal both mention Judge Pickering's view on the Gang of 14.

There is no way you can look at that agreement as a Democratic victory. Two days after the Deal was announced, Owen was confirmed by the Senate. Two weeks later, Brown was confirmed, and the next day the Senate confirmed Pryor. These confirmations were exactly what President Bush and the Republicans had tried to accomplish for five long years and the Democrats had blocked.

The confirmation of Chief Justice Roberts and Associate Justice Sam Alito --two exceptionally capable and conservative jurists-- were made relatively easy because of the "Gang of Fourteen Agreement."

Judge Pickering wrote extensively on the Gang of 14 in Supreme Chaos and while it wasn't an ultimate solution to the trench warfare over the judicial nominations, he did believe it to be a strategic no-lose situation for Republicans. The Gang of 14 Republicans agreed not to use the "Constitutional" or "nuclear" option and the Democrats agreed not to filibuster. But with no filibuster there was no occasion for Republicans to employ their parliamentary tactic. Pickering writes:

In a sense, the seven Republicans made an empty gesture in the agreement. If the Democrats did not filibuster, there would be no reason or occasion for the Republicans to vote for the constitutional option. In essence, the Republicans ceded nothing...But as a whole, the deal allowed the confirmation of Republican nominees and raised the filibuster threshold for the future...The American people and the Senate had grown tired of the special-interest groups fighting every day for five years to keep Bush's nominees off the Courts. And with the new Gang of 14 threshold in place, the climate of debate had changed.