Obama’s ‘Redistribution’ Constitution
The courts are poised for a takeover by the judicial left.
“The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”
One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.
Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.
Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.
The net result is that the legal left will once again have a majority on the nation’s most important regulatory court of appeals.
The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.
On the Supreme Court, six of the current nine justices will be 70 years old or older on January 20, 2009. There is a widespread expectation that the next president could make four appointments in just his first term, with maybe two more in a second term. Here too we are poised for heavy change.
These numbers ought to raise serious concern because of Mr. Obama’s extreme left-wing views about the role of judges. He believes — and he is quite open about this — that judges ought to decide cases in light of the empathy they ought to feel for the little guy in any lawsuit.
Speaking in July 2007 at a conference of Planned Parenthood, he said: “[W]e 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 criteria by which I’m going to be selecting my judges.”
On this view, plaintiffs should usually win against defendants in civil cases; criminals in cases against the police; consumers, employees and stockholders in suits brought against corporations; and citizens in suits brought against the government. Empathy, not justice, ought to be the mission of the federal courts, and the redistribution of wealth should be their mantra.
In a Sept. 6, 2001, interview with Chicago Public Radio station WBEZ-FM, Mr. Obama noted that the Supreme Court under Chief Justice Earl Warren “never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society,” and “to that extent as radical as I think people tried to characterize the Warren Court, it wasn’t that radical.”
He also noted that the Court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it has been interpreted.” That is to say, he noted that the U.S. Constitution as written is only a guarantee of negative liberties from government — and not an entitlement to a right to welfare or economic justice.
This raises the question of whether Mr. Obama can in good faith take the presidential oath to “preserve, protect, and defend the Constitution” as he must do if he is to take office. Does Mr. Obama support the Constitution as it is written, or does he support amendments to guarantee welfare? Is his provision of a “tax cut” to millions of Americans who currently pay no taxes merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth? Perhaps the candidate ought to be asked to answer these questions before the election rather than after.
Every new federal judge has been required by federal law to take an oath of office in which he swears that he will “administer justice without respect to persons, and do equal right to the poor and to the rich.” Mr. Obama’s emphasis on empathy in essence requires the appointment of judges committed in advance to violating this oath. To the traditional view of justice as a blindfolded person weighing legal claims fairly on a scale, he wants to tear the blindfold off, so the judge can rule for the party he empathizes with most.
The legal left wants Americans to imagine that the federal courts are very right-wing now, and that Mr. Obama will merely stem some great right-wing federal judicial tide. The reality is completely different. The federal courts hang in the balance, and it is the left which is poised to capture them.
A whole generation of Americans has come of age since the nation experienced the bad judicial appointments and foolish economic and regulatory policy of the Johnson and Carter administrations. If Mr. Obama wins we could possibly see any or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and approval of huge punitive damage awards, like those imposed against tobacco companies, against many legitimate businesses such as those selling fattening food.
Nothing less than the very idea of liberty and the rule of law are at stake in this election. We should not let Mr. Obama replace justice with empathy in our nation’s courtrooms.
Mr. Calabresi is a co-founder of the Federalist Society and a professor of law at Northwestern University.