The Magazine

Obama's Constitution

The rhetoric and the reality.

Mar 17, 2008, Vol. 13, No. 26 • By EDWARD WHELAN
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Justice John Paul Stevens turns 88 in April, and by January 2009 five other justices will be from 69 to 75 years old. If Barack Obama is elected president, he will probably--with the benefit of resignations by liberal justices eager for him to be the president who chooses their successors--have the opportunity to appoint two or three Supreme Court justices in his first term, with another two or three in a potential second term. That prospect ought to focus the attention of all Americans who want a Supreme Court that practices judicial restraint and respects the proper realm of representative government. For Obama, if elected, would certainly aim to fill the Supreme Court--and the lower federal courts--with liberal judicial activists.

Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible.

Indeed, in setting forth the sort of judges he would appoint, Obama has explicitly declared: "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 criterion by which I'll be selecting my judges." So much for the judicial virtue of dispassion. So much for a craft of judging that is distinct from politics.

In his short time in the Senate, Obama has voted against a half-dozen federal appellate-court nominees. Most tellingly, he was the first senator to join in the left's mendacious attack in 2007 on Fifth Circuit nominee Leslie Southwick--an attack that managed to drag the judicial-confirmation process to a new low. Southwick had been widely regarded as a consensus pick. The ABA's judicial-evaluations committee, after an investigation that included the usual inquiry into whether the nominee has "freedom from bias and commitment to equal justice under the law," unanimously gave him its highest "well qualified" rating. The Democrats on the Senate Judiciary Committee had, just months before, unanimously approved his nomination to a federal district judgeship.

Nevertheless, when left-wing activist groups launched their attack on Southwick, Obama jumped right in. Relying on gross misrepresentations of Southwick's record, Obama recklessly alleged that Southwick "has shown hostility towards civil rights and a disregard for equal rights for minorities, women, gays and lesbians" and that his nomination even "threaten[ed] the very basis of our freedom and democracy." Fortunately, some Democratic senators--most prominently, Judiciary Committee member Dianne Feinstein--had the courage to stand up against these lies from Obama and others, and Southwick was ultimately confirmed.

Obama's constitutional activism is particularly evident on the touchstone issue of Roe v. Wade. Obama calls abortion "one of the most fundamental rights we possess" and promises to "make preserving women's rights under Roe v. Wade a priority as president." He has harshly criticized the Court's 2007 ruling that the federal partial-birth abortion act (which was supported by broad bipartisan majorities in Congress, including abortion supporters like Senate Judiciary Committee chairman Patrick Leahy) is constitutionally permissible.

Obama often cloaks such extreme positions in sweet-sounding rhetoric. His chapter on "Our Constitution" in his campaign manifesto, The Audacity of Hope, provides a useful case study. There, Obama characterizes his own understanding of the Constitution in positively unctuous terms: "I confess that there is a fundamental humility to this reading of the Constitution and our democratic process." But there is nothing humble about the judicial role that Obama embraces.