Saturday, June 07, 2008

Obama and the Role of the Courts

Recently his spokesman stated, “Barack Obama has always believed that our courts should stand up for social and economic justice, and what’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves.”

Well what’s wrong with all that? Plenty, if you believe in the separation of powers and democracy, according to noted conservative legal scholars.

Steven Calabresi, professor of law at Northwestern University and co-founder of the Federalist Society (who also serves on John McCain’s legal advisory committee), says “I think it means he has completely the wrong idea of what a judge is supposed to do.” He notes that since the first Congress all judges have taken an oath to “do equal justice unto the rich and the poor,” but, by asking judges in essence to side with the less well off, Obama is “calling on judges to disregard this.”

Taken literally, Obama’s conceives the role of the courts as roving advocates of the poor and disadvantaged who will look, not to the text and meaning of the Constitution, but to their own ethics and values — presumably very left-leaning ones — to override statutes, executive branch actions, and the American people themselves.

Given that, one wonders if confirmation hearings for Obama judicial appointees should skip over questions of the law and focus on the appointees’ religious and ethical views, their childhood experiences, and even their record of charitable giving. How else will we know whether they are “sympathetic enough”?

Aside from his judicial philosophy, Obama’s views on specific matters of constitutional law are no secret — and bear little resemblance to the body of case law which has built up over the last thirty years.

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