August 2008: Barack Obama’s Views on Judges and Courts

Washington Watch | August 2008
By Bruce Moyer

Last month's column provided a guide to the judicial philosophy of the Republican presidential candidate, John McCain, as well as his likely approach to federal judicial appointments. This month, let's turn the tables and examine his Democratic opponent, Barack Obama.

To understand Obama's views, it's helpful to take a look at his past. Unlike McCain, 47-year-old Obama is a lawyer, who graduated magna cum laude from Harvard University Law School in 1991, where he became the first African-American to serve as president of the Harvard Law Review. Following graduation, Obama returned to Chicago, where he had worked as a summer associate at Sidley & Austin in 1989 and Hopkins & Sutter in 1990. In an effort to recruit Obama to its faculty, the University of Chicago Law School provided Obama with a fellowship to work on a book on race relations, which ultimately became his memoir, Dreams from My Father, published in 1995.

In 1992, Obama directed Illinois' Project Vote, a voter registration drive, and began a 12-year stint teaching constitutional law and other courses at Chicago. In 1993, he joined Davis, Miner, Barnhill & Galland, a small firm specializing in civil rights litigation and neighborhood economic development, and he remained with that firm for the next 11 years. He continued to practice and teach law while serving in the Illinois State Senate, to which he was first elected in 1997. With politics attracting more and more of his interest, Obama allowed his license to practice law to expire in 2002. In 2004, Obama was elected to the U.S. Senate. Though he did not publish a single law review article or essay during his 12 years of teaching at Chicago, his teaching experience helped to ground him in the nuances of consititutional law. Former fellow Chicago professor and constitutional law expert Cass Sunstein told the Chicago Sun-Times, "I don't know if we have had a [P]resident that knows as much about the founding document as he does."

Given the possibility that the next President of the United States may have the opportunity to appoint one or more justices to the Supreme Court, along with hundreds of men and women to the district and appeals courts, what kinds of judges is Obama likely to pick? It's difficult to say with precision. Obama has not been as definitive as McCain in his descriptions of the kind of judges he would appoint to the Supreme Court. He has characterized Supreme Court justices like Ruth Bader Ginsburg, Stephen Breyer, and David Souter as "sensible" judges, suggesting that they would serve as models for his appointments, in comparison with Chief Justice John Roberts and Justice Samuel Alito, whom McCain has designated as his models. Obama, in fact, voted against the confirmations of both Roberts in 2005 and Alito in 2006.

Whereas McCain has taken "judicial activists" to task and promised to appoint more judges who will "strictly interpret the Constitution," Obama has said that he will seek out jurists who "rely on his or her own perspectives, his ethics, his or her moral bearings"—jurists who are "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being … dealt with sometimes unfairly, that the courts become a refuge."

Judging from other statements Obama has made, however, one cannot necessarily assume that he would appoint rock-solid liberals to the High Court. He welcomed the Supreme Court decision allowing Guantanamo detainees to challenge their imprisonment through habeas corpus and broke with the Court's liberals in two recent high-profile cases involving the Second and Eighth Amendments. Obama applauded the Supreme Court's 5 to 4 decision striking down the District of Columbia's handgun law, saying that he "always believed that the 2nd Amendment protects the right of individuals to bear arms" and that such an approach should be subject to reasonable regulation. He also criticized the Court's decision overturning the Louisiana death penalty for a person convicted of raping a child, saying "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution." Ironically, Obama's models on the Supreme Court—Justices Ginsburg, Breyer, and Souter—all were on the opposite sides of the fence in both of those cases.

Some pundits have knocked Obama's commentary on those cases as calculated political repositioning to move him to the center. Others who have parsed his teaching and legislative records have characterized these comments as consistent, nuanced extensions of his thinking about guns and the death penalty. Either way, the contrasts between candidates McCain and Obama and their attitudes toward the federal bench define significant jurisprudential differences in how their presidencies might play out.

Bruce Moyer is government relations counsel for the FBA.
© 2008 Bruce Moyer. All rights reserved.

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