Saturday, September 24, 2005

Litmus Test

Barack Obama has decided to vote "no" on Judge Roberts. More interstingly, he appears to be in favor of a political litmus test for confirming judges
The problem I face ... is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult...In those circumstances, your decisions about

whether affirmative action is an appropriate response to the history of discrimination in this country


whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions


whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce


in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

When I heard that the Democratic party is the party of emotive theatrics, I understood that to be sarcasm, hmmm. I would presume to remind Sen. Obama that ultimate mastery is not of the body, but of the mind.

This little paragraph sums up the corner Democrats have painted themselves into
Senate Minority Leader Harry M. Reid (D-Nev.) made a remarkable statement: "The president is not entitled to very much deference in staffing the third branch of government, the judiciary."

This country has only one president at a time ... if the presidential election means anything in this arena, it must mean that the president's choice has a heavy presumption of confirmation ... Why else would Justices Sandra Day O'Connor, Antonin Scalia, Stephen G. Breyer and Ruth Bader Ginsburg have received only a handful of no-votes among them? During the Clinton administration, we deplored the way that the Senate treated the president's judicial nominees during six years of Republican control over the Senate ... If Republicans had been applying Mr. Reid's standard, they would have been within their rights to reject [all Clinton's nominees].

UPDATE: Looks like the Chicago Tribune is thinking some of the same things.
No one expected such independence from Illinois Democratic Sen. Dick Durbin, a reflexive partisan. It was disheartening, though, to see Barack Obama (D-Ill.) fall in line with the Democratic leadership--and do a poor job of justifying that position. Admitting that the nominee has a host of sterling qualities, Obama essentially said he couldn't vote for him because Roberts doesn't seem to share Obama's views on racial issues--in short, he just isn't as enlightened as Obama. Who knew of that constitutional requirement?


Blogger xian said...

I think there's an added element here. Look at the way juries are selected in criminal cases in which the defendant is a person of color. The prosecutors attempt to strike all of the potential jurors of color because they are more likely to be empathetic to the defendant's perspective.

The color divide, while not a concrete reality, has real impacts in our society. If Roberts "unbiased" perspective is unempathetic to the realities of being a non-majority in the country, then it makes perfect sense for Obama to question his qualifications.

Blogger Roy said...

I believe you are misrepresenting the role of judge, or rather, confusing it with the role of a lawyer. A lawyer is an advocate for a client, whereas a judge is an advocate for justice. AS such, a lawyer can utilize demographics to gain an edge in a case, but a judge must not make such considerations.

I am not saying it doesn't make sense for Obama to question Roberts. In fact, I appreciate his candor. From the press release we learned two things: Obama's view of advice and consent means judges should have political views that the majority of senators agree with. Secondly, as far as republicans are concerned, there is a presumption of what he would call extremeism. Namely, if you are a republican judge, you must prove that you are not extreme.


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