What’s at Stake in November: A Look at Obama’s Judges

The winner of the November election will have the opportunity to appoint a huge chunk of the federal judiciary, as I recently observed.  If the prospect of Obama calling the shots isn’t frightening enough, take a look at some his judicial picks so far.  A second-term Obama, freed from re-election concerns, is likely to go even more radical in his nominations (although he may need to recruit his judges from the Cuba to get further left).

At the Supreme Court, his very first pick, remember, was Sonia Sotomayor who famously said “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor and Elena Kagan have predictably moved in lock-step with the White House.

As for the lower courts, well, there’s David Hamilton, who, as I recently mentioned, held that praying to “Jesus” (by state legislators) would violate the Establishment Clause, but that praying to “Allah” would not.   Obama got him a Circuit Court seat, in which he has voted to forbid a high school from using a church to hold graduation ceremonies.

Then there’s Goodwin Liu, a radical Berkeley professor, for whom the values of “free enterprise,” “private ownership of property,” and “limited government” are really code words for those who are anti-environment, anti-labor and anti-consumer protections.” Liu is an outspoken proponent of re-interpreting the “Living Constitution” to guarantee welfare rights.

Or Edward Chen, successfully nominated for the United States District Court for the Northern District of California.  Chen said the singing of “America the Beautiful” at a funeral was an appeal to patriotism that sparked “feelings of ambivalence and cynicism” in him. Like Obama, Chen thinks that the vacuous concept of “empathy” is the most important quality of a judge.

Obama was not successful, so far, with Louis Butler, a former member of the Wisconsin Supreme Court who John Fund aptly called “the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices.”  So radical were his opinions that Wisconsin’s voters in April 2008 took the extraordinary step of defeating Butler’s bid to remain on the state supreme court.

The judges nominated by Mitt Romney could not conceivably be worse than the sort of hard-left jurists favored by Obama.  In fact, there is reason to believe that his nominations will be considerably better – I will post soon about Romney’s record on the judiciary.

“Sarcasm, hyperbole, and inflammatory attacks on liberals”

That’s how Publisher’s Weekly describes my forthcoming book, The Naked Constitution.  Need more be said?

Freedman, a commentator for the conservative news site Ricochet.com, offers a no-holds-barred defense of originalism, which he defines as the proposition that the Constitution should retain the meaning it had when it was ratified in 1789.  . . . Freedman is an entertaining writer and conservative readers will be amused by his use of sarcasm, hyperbole, and inflammatory attacks on liberals—Pulitzer Prize–winner Gary Wills is a “Sneerer in Chief of the antigun movement”; former president Jimmy Carter is “that cowboy.”

Another Victory for Anti-Religious Bigots

A full panel of the Seventh Circuit Court of Appeals held that two Wisconsin high schools violated religious freedom by holding graduation ceremonies in a (gasp!) church.

Never mind that students in the school district had repeatedly voted to use the church (because it had air conditioning, good parking, etc), and never mind that the students held fundraisers to pay for the rental fee. The Court held that the whole arrangement violated “the First Amendment’s core value of protecting members of minority faiths and non-believers from persecution and exclusion by religious majorities,” in the words of concurring judge David Hamilton.

Speaking of Judge Hamilton, he was the district court judge who, in 2005, held that state legislators could not openly pray to “Jesus” without violating the Constitution, but they could pray to “Allah.” Given his judicial philosophy, it’s no wonder that President Obama elevated Hamilton to the Seventh Circuit. Given another 4 years, Obama might get Hamilton on the Supreme Court (see my earlier post on What’s at Stake in this election).

The original meaning of the Establishment Clause was to prevent the federal government from interfering with State laws recognizing (or not) religions, hence the command that Congress shall make no law “respecting” an establishment of religion. In other words, the Establishment Clause is a federalism provision — it gives states and localities the freedom to engage in precisely the sort of cooperative efforts at work in Wisconsin, as long as those efforts do not impinge on anybody’s right to “free exercise” of religion. Clearly, holding a graduation ceremony in a rented church building does not trample on anybody’s free exercise.

The full text of the decision, including good dissents by Judges Posner, Easterbrook, and Ripple, is here.

“A no-holds-barred defense of originalism”

That’s what Publisher’s Weekly had to say about my forthcoming book: The Naked Constitution!  I especially like the part in bold.

Freedman, a commentator for the conservative news site Ricochet.com, offers a no-holds-barred defense of originalism, which he defines as the proposition that the Constitution should retain the meaning it had when it was ratified in 1789.  . . .  Freedman is an entertaining writer and conservative readers will be amused by his use of sarcasm, hyperbole, and inflammatory attacks on liberals—Pulitzer Prize–winner Gary Wills is a “Sneerer in Chief of the antigun movement”; former president Jimmy Carter is “that cowboy.” In order to return to the spirit of the original Constitution, paradoxically, Freedman says, amendment is necessary. He ends with the call for a new constitutional convention and suggests a list of amendments consistent with his conservative beliefs, for instance, returning power from the federal government to the states

Can the UN Repeal the Second Amendment?

The UN is reportedly on track to complete the Arms Trade Treaty by its self-imposed deadline of July 27 — a treaty that could undermine the Second Amendment revival that the Supreme Court ushered in a few years ago.

Granted, the treaty does not literally require that member nations ban guns — ostensibly it’s about keeping guns from terrorists (although the UN won’t say what a “terrorist” is) — but it could lead to “death by a 1,000 cuts” for gun rights, as Heritage’s Ted Bromund points out. For example, the latest draft of the treaty applies to “all international transfers of conventional arms” but then goes on to define “international transfers” as “the transfer of title or control over the conventional arms.” So when does a transfer become “international?”  Consider how the US Courts have stretched the concept of “interstate” in Commerce Clause cases, so that the cultivation of wheat (or pot) for personal consumption counts as “interstate commerce.”

Thus, anti-gun politicians (Obama, Pelosi, etc.) could push for tighter gun regulations arguing that it’s a matter of fulfilling our international obligations. Or the courts might save the politicians the work by doing it themselves. As Bromund argues, the treaty “will inspire judges and legal theorists who believe that the Constitution needs to be reinterpreted in light of transnational norms.” This is a trend that John Yoo highlights in his excellent book, Taming Globalization.

Second Amendment rights are, of course, subject to reasonable regulations. But those regulations are to be decided by state and local authorities — not the UN. Whether or not the US ratifies the Arms Trade Treaty, US courts should interpret international treaties so that they adhere to the Constitution’s scheme of rights and separation of powers.

John Roberts and the Legitimacy of the Court

In Jeffrey Rosen’s latest love letter to the Chief Justice (there have been 3 0r 4 already), he gushes that Roberts’ ObamaCare decision “revealed the chief justice as a master strategist with a nuanced concern for institutional integrity.” Presumably his “masterful” strategy included writing an opinion whose reasoning was so convoluted that it attracted not one other justice (although the 4 liberals concurred in the result). How diabolically clever!

The conventional wisdom now is that Roberts sacrificed his right-wing inclinations to preserve the “institutional legitimacy” of the Court. Suddenly “institutional legitimacy” is an independent doctrine in constitutional law — according to Rosen, it is every bit as important as the text of the Constitution itself: “Justices have broad discretion to pick and choose among competing legal arguments based on a range of factors—including concerns about text, history, precedent, or institutional legitimacy.” Sure, the Framers might have written X, but if you think Y sounds more “legitimate,” then go with Y.

I can’t imagine this sort of nonsense will appeal to many people outside the Beltway. The legitimacy of an institution depends first and foremost on whether it does its job. The job of the Supreme Court is to uphold the Constitution, and thus, to serve as a check against the excesses of Congress. I sincerely hope that Roberts writes a decision next year upholding the Defense of Marriage Act (DOMA) in the name of “institutional legitimacy.”  Don’t hold your breath for more Rosen love letters.

As David Bernstein writes at Volokh: “A Chief Justice getting praise from commenters like Rosen for avoiding getting the Court into a political tangle by strategically changing his vote will in the long-term cause the Court’s legitimacy to suffer.”

What’s at Stake in 2012: The Lower Courts

As I wrote earlier, the outcome of the 2012 election is likely to set the future course of the Supreme Court for a decade or more.   A second-term Obama will have the opportunity to turn the Court decisively to the left.  But there’s more to the judiciary than the Supreme Court.  Most cases don’t make it to the high court.  As a result the lower federal courts, especially the appellate (“circuit”) courts end up making much of the law that we live with.

There are 874 federal judgeships in total.  So far, Obama has appointed 126 judges, but given a second term the number will no doubt be closer to W’s total of 328 judges or even Clinton’s 379 (good statistics at the US Courts website).

On inauguration day 2013, the next president will start out with 92 judicial vacancies to fill (assuming that nobody else gets confirmed between now and election day).  This includes three, count ‘em, three, vacancies on the all-important DC Circuit: the court that hears most appeals from the decisions of federal agencies and which is very often the warm-up bench for future SCOTUS justices.   The ability to appoint three new judges to the DC Circuit will help determine whether the so-called “independent agencies” will continue to operate as a rogue fourth branch of government without judicial check.

Incidentally, the high number of judicial vacancies is not necessarily due to Republican “obstructionism” (contrary to the mainstream media), but is at least partly due to the administration’s incompetence.  As Ed Whelan of NRO Bench Memos has pointed out, Obama let two years go by without nominating anyone to the then-existing two open slots on the DC Circuit.  Well, now there are three open slots.  Whose fault is that?  Moreover, there have been a “significant number” of Obama’s potential judicial nominees who couldn’t even get a thumbs-up from the strongly liberal American Bar Association.  But given four more years, Obama will eventually get his way.

Good Question, Mr. Chief Justice!

Ilya Shapiro points out an interesting exchange from the oral argument on ObamaCare.  When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?


CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—

CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…

What caused Roberts to adopt the position put forth by the bumbling Verilli?  Speculation continues, but as Ilya suggests, perhaps Roberts was against treating the mandate as a tax before he was for it.

What’s at Stake in 2012: The Supreme Court

If Barack Obama gets re-elected, he’ll have the White House for the next four years – and the Supreme Court for the next twenty-five.  The average tenure of a Supreme Court Justice today is 25 years, as Clint Bolick recently pointed out in the WSJ.  Obama has already nominated two relatively young knee-jerk liberals to the Court (Kagan and Sotomayor for those keeping score at home).  How many more justices will Obama get to nominate?  Look at it this way: three justices – Scalia, Kennedy, and Ginsburg – will reach their 80s during the next presidential administration.  And Stephen Breyer will be in his late 70s. 

Bolick is right to remind us of the many 5-4 decisions in recent Supreme Court jurisprudence.  Just one more liberal vote could undo any or all of these: campaign finance (Citizens United), gun rights (Heller and McDonald), school choice (Zelman).  Even in the recent healthcare case, the good parts of the decision, setting limits on the Commerce Clause and on Congress’s power to coerce states , attracted only five votes.

Now that John Roberts is officially a “swing vote,” the need to get conservatives on the Court is more pressing than ever.  A Romney presidency does not guarantee conservative justices, but another Obama term absolutely guarantees more liberal justices.  For the left, it will a gift that keeps on giving.

Three Cheers for Rick Perry

Earlier this week, Governor Perry announced that Texas would not be setting up an ObamaCare exchange, and would not participate in ObamaCare’s Medicaid expansion.  In fact, Perry is the sixth governor to opt out of these two provisions.  In yesterday’s Washington Times, Perry argued that both the exchanges and the Medicaid expansion represent “brazen intrusions into the affairs of states.”   As I said recently, the states can defeat ObamaCare if enough of them refuse to implement its provisions.

The usual suspects, including the New Republic, are blasting Perry for the sin of turning down “free” money from Uncle Sam.  After all, the federal government is picking up 100% of the costs of the Medicaid expansion, right?

Not exactly.  Uncle Sam will pay none of the administrative costs associated with adding millions of people to the Medicaid rolls.  Yes, the federal government will pay 100% of the additional Medicaid benefits for 3 years.  And then 90% for the next 7 years.  But after 10 years are up, there’s no guarantee of any further federal funding.  And you can bet that if Congress re-ups after 10 years, it will attach yet more strings to any further funding.  That’s the insidious nature of the federal grants: you get the states hooked on them, and then you layer on more and more conditions.

And there’s the even more fundamental objection made by Perry: “this “federal money” is being printed out of thin air – racking up trillions of dollars of debt on the backs of our children and grandchildren.”

As for the exchanges, as I said in my recent post, ObamaCare has no viable mechanism to force states to set up healthcare exchanges.  The law seems to assume that the states would willingly play along.  Oh well, 44 more states to go.

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