Obama’s legacy: bad judges — Updated

May 19, 2011

Presidents almost always worry about their legacy — what lasting effect they’ll have on the nation and how History will remember them. President Obama is surely no different in that regard from his predecessors — a man as narcissistic as he couldn’t be otherwise.  Indeed, he made his desire to fundamentally transform America a centerpiece of his campaign for election; you can bet he wants to be known for this:

One of the more subtle, yet profound, ways a president shapes this legacy is through his selection of federal judges, from the Supreme Court down to the district courts. Our legal tradition gives judges great power to shape the law via interpretation and even to create it out of whole cloth, if they can come up with a constitutional justification — however flimsy and tortured. And so President Obama can, through his judicial nomination,  have an influence over our laws and the relationship between citizen and government long after he leaves office.

Which should worry the heck out of us.

At Pajamas Media, Hans von Spakovsky and Deborah OMalley give us a rundown of eight awful picks who pose a real threat to our democracy and who should never, ever come anywhere near the higher courts. Here’s one example:

Bernice Donald: Donald, a district court judge in Tennessee, is nominated to the Sixth Circuit. She has made some worrisome, Chen-esque statements concerning how a judge’s experience should influence her decision-making. During an American Bar Foundation panel, she stated that, as an African American woman judge, she had a “vastly different” view than her white male colleagues as to which evidence supports summary judgment — as if one’s race somehow genetically defines one’s legal thinking. While judges try to be objective, she explained, they inevitably view things “through the lens of culture … and that may impact how … much weight [they] accord to different things.”

She has even advocated that courts consider a plaintiff’s cultural background in tort suits. Why? Because a plaintiff may be “more adversely affected by [an] error” depending on their cultural background and therefore “entitled to a larger award.” Not considering a plaintiff’s culture in tort cases, she asserts, denies “true justice” to large segments of society. In fact, she believes that courts hearing tort cases can be “on the front lines of public policy, cultural anthropology, and the law.” A novel concept of justice indeed, especially in a country with a Constitution that requires all citizens to be treated equally under the law, no matter what their race or “cultural” background.

Worse than these statements is her conduct on the bench. In a number of cases, she has stretched the limits of judicial power. In a gender-discrimination case, the Sixth Circuit overturned her decision for having “circular reasoning” and for ordering a professor to apologize to a female plaintiff who sued him for discrimination. The Sixth Circuit chastised Donald for exceeding her equitable power when she ordered the professor to apologize, citing to a Ninth Circuit case where the court said “[w]e are not commissioned to run around getting apologies.”

In another case, she took the bizarre — and blatantly unconstitutional — position that the racial makeup of faculty members at a school should match the racial makeup of the student body. Her argument was that school children are constitutionally entitled to “educational guidance which includes teachers of the student’s own race.” The Sixth Circuit rejected this argument, noting the obvious fact that it would amount to discriminatory hiring and firing of faculty. Donald, however, obviously believes that discriminatory employment practices like racial quotas are not just legal, but desirable.

(Emphasis added. )

Call me old-fashioned, but, while I believe our system works best when judges are given broad discretion, that freedom also requires restraint and humility on their part. Their job is to interpret the law as democratically-elected legislatures intended, barring blatant unconstitutionality.  If they want to make policy, they should take off the black robe and run for Congress or their state legislature, the bodies which answer to the people. Of course, that’s anathema to the Left, which has been using the courts to make an end-run around the people since the 1960s.

Meanwhile, there are seven more awful picks on the list, and Judge Donald isn’t even the worst. That honor goes to Goodwin Liu, whose nomination to the 9th Circuit is up for a cloture vote today and faces a threatened filibuster, one of the rare times I think it’s justified.

Given the legacy of judges the president wishes to bequeath to the nation, however, those times may have to become much more common.

UPDATE: Liu’s nomination was blocked in the Senate. Well done to the Republican caucus.

(Crossposted at Sister Toldjah)


On judges and “the will of the People”

August 5, 2010

Among the various reactions to Judge’s Vaughn Walker’s decision in Perry v. Schwarzenegger to overturn California’s Proposition 8 and allow same-sex marriage here, I noticed a disturbing theme among commenters at blogs and on Twitter: the idea that the judge had no right to overturn a state constitutional amendment that directly reflected the will of the people.

To which I say, “hogwash.”  Not talking

Don’t get me wrong: I’m a staunch believer in judicial restraint. Judges should interpret the law, not make it. They, as unelected officials, should grant great deference to the elected legislatures, which (the current Congress excepted) represent the people’s will. And this is especially true when the People act directly as a legislature, as in the case of ballot initiatives.

But, conservatives who say the judge had no right to do what he did are missing a very important point: ours is a constitutional republic under the rule of law, not a majoritarian direct democracy. Our constitution was set up, in part, to protect the rights of political minorities from the passions and whims of a majority, to prevent a majoritarian tyranny. Under our system, even the People have to obey the restraints on power put in place by the Constitution. They can change the Constitution if they like, but they are not free to ignore it. If a state were to pass a bill prohibiting Asian immigrants from owning property and forcing them to sell what they did own, a federal court would rightly strike this down* as violating the Bill of Rights even if it were an amendment to the state’s constitution enacted by popular referendum.

To turn back to Judge Walker’s decision in Perry, I make no claims as to whether it was correct. (For interesting criticism, see Ed Whelan and Dale Carpenter) But, if the judge honestly believed Proposition 8 violated homosexuals’ constitutional rights, then he had not only the right to rule as he did, but also a positive duty to do so. To say otherwise is to deny wholesale the principle of judicial review, a cornerstone of our system since 1803.

So, Judge Walker may be wrong on the law and his decision subject to reversal, and he may become a poster child for judicial imperialism, but those are questions separate from whether he has the authority.

Babies. Bathwater. Let’s remember the difference.

*(Sadly, in the real case of California’s Alien Land Law of 1913, the court took way too long to finally overturn it.)