Halloween Fright: Democrats Will Reshape Courts

Steven G. Calabresi, a professor of law at Northwestern University, has a really scary piece in the Wall Street Journal. Obama and Democrats are going to transform the courts into all-time citadels of activism.

Calabresi starts slowly, noting “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.”

In the key District of Columbia Circuit Court, Reagan appointed 8 judges, an average of 1 a year. But Bush was able to name only 4. Two seats on this court are vacant, and Obama will fill those 2, plus the seats of 2 older Clinton appointees who will retire, and most likely the seats of 4 older Reagan and George H.W. Bush appointees who may retire as well. As a consequence, the legal left will once again have a majority on the nation's most important regulatory appeals court.

The balance will shift as well on almost all of the 12 other federal appeals courts. Obama will swing 9 of the 13 (not counting the Ninth Circuit, which the left solidly controls today). On the Supreme Court, 6 of the current 9 justices will be 70 years old or older on January 20, 2009. There is a widespread expectation that the next president could make 4 appointments in just his first term, with maybe 2 more in a second term. We are poised for heavy change.

Here’s what’s really frightening: Obama's extreme left-wing views about the role of judges. He believes that judges ought to decide cases in light of the empathy they ought to feel for the little person in any lawsuit.

According to Calabresi:

 Obama in July 2007 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."

 This means 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, is the federal courts’ mission.

 In September 2001, Obama noted that the Warren Court "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."

 Obama added 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 the U.S. Constitution has so far only guaranteed negative liberties from government—with no right to welfare or economic justice.

 This raises the question of whether Obama supports the Constitution as it is written. Does his provision of a "tax cut" to millions who pay no income taxes foreshadow constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth?

 Federal judges must take an oath of office to "administer justice without respect to persons, and do equal right to the poor and to the rich." Obama's emphasis on empathy in essence requires judges to violate this oath. Instead of a blindfolded person weighing legal claims fairly on a scale, Obama wants to tear the blindfold off, so the judge can rule for the most deserving of empathy. The legal left believes the federal courts are very right-wing now. The reality is different. Federal courts hang in the balance.

 Obama could give us a constitutional right to welfare; a 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 3rd trimester; the abolition of capital punishment and the mass freeing of criminal defendants; ruinous shareholder suits against corporate officers and directors; and huge punitive damage awards against businesses such as those selling fattening food.