28 October 2008

Steven Calabresi On Obama's Courts

Just how liberal-left would a new Obama administration be? How would his choices and decisions play themselves out on the Supreme Court and various Courts of Appeals? What will become of your whimsical, youthful, hipster vote for "change" & "hope?"

Calabresi provides a view of Obama's dystopia.

If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats (on the DC Circuit Court), 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, [will be] 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.

(emphasis added)

My Obama-supporting friends insist that Obama isn't nearly this left-wing, that I should listen to what he has said during the campaign.

Since when has a campaign promise ever been an accurate indicator of an administration's policy preference?

Personally, I think the off-script, pre-election statements are the most revealing. These are the times--some of which Calabrisi highlights above--that reveal exactly what the candidate really believes, as opposed to what he's saying to get elected.

It's why I believe that Obama really is a the most liberal-left candidate since FDR. It's why I believe that he really does beleive in and would pursue redistributive policies. The naysayers say, well, he's only going to raise marginal tax rates 4%. If you believe that he can fund his entire policy wishlist and the credit crisis and everything else with a mere 4% raise of marginal rates, then you are an idiot.

This is why when Obama goes off-script and makes comments like the one to Joe the Plumber--that he wants to "spread the wealth around," I listen up. Because I know this is what he really believes, rather than what his campaign comms staff has told him to say to get elected.

Obama is not a euro-socialist just because he wants to raise taxes by 4%. He's a euro-socialist because he will give "tax refunds" to people who pay no taxes whatsoever. By whatever name Obama wants to call it, this is redistribution of income.

This is taking money from someone who has earned it and giving it to someone who has not. This makes people dependent on government and the all-powerful goodness of The One.

Just remember, Obamabots: Whatever The One gives, The One can just as easily take it away.

If you have tips, questions, comments or suggestions, email me at lybberty@gmail.com.