Obama and Judicial Appointments

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The word is out that Senator Barack Obama's judicial advisory team (assuming this report is accurate) takes him to be interested in judicial nominees who come across like John Roberts in person but who would decide cases like Justices Thurgood Marshall and William Brennan. [hat tip: Orin Kerr]

Obviously he doesn't mean they'd come across sounding like a moderate conservative, or it would be hard to get Democrats to support his nominees. He means someone who doesn't have much of a record in terms of ideology but who seems like a well-qualified judge. But he also doesn't mean someone who would be moderated in liberalism the way John Roberts is moderated in his conservatism. Otherwise he wouldn't name Justices Brennan and Marshall, two of the most liberal justices ever on the Supreme Court (by pretty much anyone's standards).

So he wants nominees who are actually extremely liberal but sound moderate. Moderation within judicial liberalism ends up with something like Justice Breyer, the one justice of the four liberals on the Supreme Court who is most likely to vote with the conservatives on constitutional issues of any moment. (Justices Ginsburg and Souter often vote with conservatives on statutory interpretation, but that's only when little of ideological importance is at stake.) Moderation in judicial liberalism does not lead to appointments of judges who will vote the way Justices Marshall and Brennan did.

For political reasons, this strategy does make sense. If you want to replace Justice Stevens, for example, with someone even further to the left, then you better find someone who isn't obviously further to the left, or it would be much harder to confirm them. I'm not going to dispute such a strategy. Both sides in the current environment need nominees who come across the way Roberts did if they want to get anything like a strong confirmation vote. I think McCain would need to be even more conscious of this than a Democratic president would, given the Democratic control of the Senate, but the Senate is still divided enough that the Republicans could present problems for a Democratic nominee if they really want to (and partly because the Gang of 16 was successful, which McCain would then have himself to thank for).

But even if this strategy makes political sense, I think it shows something about Senator Obama. He doesn't say he'd appoint real moderates in order to get them confirmed. He wants real liberals but knows there isn't enough popular support for them to get them through the current Senate. The conservatives I've been reading who are arguing for appointing someone like Roberts in order to get a chance at confirmation are arguing for someone just like Roberts, not someone who sounds like Roberts but actually would vote like Judge Robert Bork. I do worry about whether this counts as deception. But whatever you think about that issues,. this is yet another clear sign that Barack Obama is no moderate, despite the popular view of him. It continues to amaze me how far left of center he is, and yet so many people see him as the sort of person who would be able to break down the gridlock in Congress and get genuine conservatives to work with him on proposals that are anathema to them. I just don't get it.

I had to laugh at the last line of the Emily Bazelon Slate piece I linked to above. The judicial strategy of sounding moderate but turning out to be quite a bit to the left of moderate wouldn't exactly be a new tactic for Senator Obama.

15 Comments

You're right, of course, that Obama is more liberal than he's perceived. But don't underestimate the significance of that perception -- either among the voters, or even Congress and the political realm.

You say: It continues to amaze me how far left of center he is, and yet so many people see him as the sort of person who would be able to break down the gridlock in Congress and get genuine conservatives to work with him on proposals that are anathema to them.

I'm not sure the connection is as straightforward as you seem to think. For instance, I'm inclined to place Obama to the left of Clinton, but I'm positive he'd get more bipartisan support, on the whole, than she would.

A popular leader who communicates well with the public can redefine the center. Those of us who both can see what is happening and share that sort of liberal ideology are very excited by Barack Obama.

No, I understand why someone with your views and political temperament would be very attracted to Obama. What I don't understand is the Republicans or genuine moderates who support Obama on the basis of his being more moderate than Hillary Clinton or John McCain. He just isn't.

Well, keep in mind that the vast majority of the electorate is stunningly underinformed. SOME of them read the headlines and listen to soundclips of speeches. A tiny percentage of voters actually go out and research what the candidates are actually on the record as saying and doing.

This applies to all sorts of perceptions. It's the same phenomenon that explains the fact that there are a whole bunch of Republicans who supported George Bush because they believe in small government. It's baffling to people with their eyes open, until you remember that most people keep them closed most of the time.

(I haven't been paying a lot of attention to McCain lately; I'll remedy that in the coming months. But a year or two ago, I remember being convinced that he's a lot less moderate than he gets credit for, too. But of course 'center' is a slippery notion.)

And I guess I want to re-emphasize what I said earlier. We want to separate these two properties: (1) occupying the middle of the political spectrum; (2) being likely to cross over party lines and effect bipartisan change.

There are reasons to think these might go together generally, but there's no reason they have to. I don't think Obama supporters are delusional to think that (2) applies.

This distinction isn't always made clear. Plausibly, some self-professed 'moderates' are really more interested in (2) than (1). That might explain why 'moderates' like him so much.

I should also say that I think there's something a little funny about Obama's sense of bi-partisanship compared with what Clinton, Bush, and McCain have tried to do. Bush worked with Ted Kennedy and others who are clearly not moderates to find policies that alienated the extremes of both parties but found support from both parties. These are really middle-of-the-road strategies in many cases. The immigration policy is certainly like this. I would argue that No Child Left Behind is. Clinton-Gingrich welfare reform also is.

What I see Obama doing is emphasizing themes that moderates might be attracted to in an election, especially when there's so much anger against the typical approaches of both parties. But then his specific policy proposals are ones that I just don't see moderate conservatives going for once they look at the details. I'm not sure even moderate liberals are going to go for a lot of them.

An example is his emphasis on responsibility, which attracts conservatives. Conservatives often complain about handouts to people who are capable of working but get caught up in government handouts and thus just become a drain on the system instead of contributing positively. Conservative prefer an approach that helps people to be productive and encourages a work ethic. But conservatives favor incentive-based approaches and limits on government handouts. When you look at the details of Obama's approaches, it's clear that he doesn't have a lot of limits on simply subsidies and entitlements. What he does have are additional requirements of what everyone has to do. So rather than encouraging responsibility and a work ethic, you have something more like what conservatives will see as forced labor or government deciding what to do with money you could (but might not) otherwise yourself choose how to devote to charities or to economic growth in the economy.

I just don't see conservatives going for this kind of thing as easily as moderate liberals (and even some more traditional liberals such as Ted Kennedy) have gone for some of Bush and McCain's proposals.

Like Jonathan, I think we need to clearly separate centrism from bipartisanship. The latter is not even just a matter of appearing centrist in policy. Rather, I'd see it as an entirely separate, procedural dimension. Obama is not one to demonize his opponents the way many partisans do, and he is willing to listen seriously to others' objections and suggestions, even when he ultimately disagrees with them. Now, you seem to be assuming that people's views and policy preferences are fixed and unalterable. But I think that, by engaging in respectful dialogue, Obama often succeeds in changing people's minds, and winning over his erstwhile opponents. (See, for example, his remarkable success in overcoming widespread opposition to his proposed bill to require videotaping of confessions, ultimately securing unanimous support in the Illinois senate.)

For a judge, the point isn't to be moderate, but to be correct and to use the correct reasoning getting there. That's the pull of Roberts: he's a reasonable guy, even if he winds up at the wrong conclusions more often than not.

It's not about nominating some kind of liberal Trojan Horse, but about nominating a well-reasoned, correct (read: liberal) justice.

You mentioned Obama's sense of bi-partisanship is different. I heard him talk about incentive-based approach to encourage more students to continue with higher education. They would have to work for their tuition. He understands personal responsibility and wouldn't support government tuition handouts. This is definitely something that conservatives would go for too. Although I'm Canadian, I perceive him to be a "respectful liberal". By that, I mean that although he is still liberal, he still treats conservatives with mutual respect, unlike Clinton or Kennedy. This would get him far if he was in the oval office.

I don't think what he said about Bush's Supreme Court nominees was all that respectful. He basically accused Roberts of having a callous heart toward the weak and being dismissive of attempts to eradicate discrimination. Then two paragraphs later he complained that Democrats were attacking Senator Leahy's motivations for supporting Roberts, as if it's bad to attack people's motives, something he'd just spent a couple paragraphs doing with Roberts.

He did something similar with Alito. He spoke about how civility is a good thing. He did say that Alito is a man of great character, which is at least better than how he treated Roberts. But then he went on to accuse him of siding with the strong, the state, and corporations in every case where he didn't have to follow Supreme Court precedent, as if it weren't about what he viewed the Constitution as requiring but were just about seeking to get certain results that favored the strong, the state, and corporations.

I know Obama prefers results-oriented judges. He's made that clear. But it's pretty nasty to read that into what conservative judges are doing when they decide cases in ways that happen to generate a certain result given that conservatives aren't just deciding because they like the outcome the way Obama seems to want judges to do. They're actually deciding cases based on how they think the law really reads or how they think the Constitution does or does not dictate what should happen. So basically Obama pretends to be civil by saying Alito is a man of character but then launches into an attack that treats him as thoroughly dishonest when he says he interprets law and the Constitution, treating him as if he simply favors certain results. I'm not too fond of people who say they favor civility and then basically treat someone they say they're being civil to as a bold-faced liar with a hidden agenda.

He speaks nicely and sounds like he's trying to remove the fighting and name-calling in politics, but he's no less guilty of it than the others, and he even does it while pretending he doesn't do it. What I'd say is that he speaks nicely about people and doesn't call people names in an overt, explicit way. He crafts his rhetoric so it doesn't sound as bad when he does it, but what he does say can be pretty cruel. It's hard for me to see his attack on Roberts as morally respectable, despite all the words he crafted around it to make it sound as if it is. I'm not sure his Alito speech was a lot better (although it was better, despite in some ways sounding worse).

I don't think what he said about Bush's Supreme Court nominees was all that respectful. He basically accused Roberts of having a callous heart toward the weak and being dismissive of attempts to eradicate discrimination...He did something similar with Alito...

Are you sure you're giving Obama's speeches the most charitable reading? I've seen you go to great lengths to defend statements that are far less innocuous than these.

I'd posit that you aren't following his argument completely. You seem to understand Obama to be accusing Alito and Roberts of preferring the wrong results. Your defence of the judges is simply that their judicial process/philosophy simply happens to have those results.

You seem to have overlooked the part where Obama notes that 95% of cases using that process/philosophy are straightforward. He doesn't seem to me to be objecting to any of those cases. What he claims is that in the remaining 5%, the process/philosophy provides no guidance. The law and the merits are ambiguous enough or vague enough or balanced enough that it could rightfully (under that process) go either way. In the end, in those cases, ultimately it is the judges personal preferences and values which decide the case.

Obama claims that in those cases, Alito and Roberts have consistently sided with the strong and powerful.* He says that that reveals something about their values and heart, since those are the things that ultimately decide cases like that.

Now, you may disagree with Obama about which cases are in that 5% (or you can quibble about if it is 2% or 10%). And by doing so you might show that Alito and Roberts have not consistently sided with the strong and powerful. (But I think that you'd have a hard time making the case that Originalism always happens to coincide with the interests of the Powerful. If you did successfully make the case, then you've pretty successfully also made the case that Originalism is deeply and systemically flawed if not downright evil, so I'm not sure you'd want to go there.)

But I'm not sure it is fair to call Obama vicious for pointing out that in the cases where personal values were determinative, Alito and Roberts sided with the Powerful. You might say that Obama is wrong about which cases comprise that 5% and that therefore Obama is wrong about their character. Or you might argue that Obama's logic is wrong altogether. But I don't think that you can argue that pointing out people's character issues is a vicious thing to do when explaining why you don't want to (essentially) hire someone. And it is all but impossible to argue with the notion that your values and character are revealed when you make a decision that is totally determined by your values and character.

* It should be noted that not everyone sees this as a bad thing, so this is not even necessarily an indictment. Many/most economic conservatives, the ones who hold to "trickle down economics", think that eveyone is best served by supporting the Powerful and Strong.

I think I have a good idea of which cases he has in mind. The Democratic senators had a great deal to say about a very small number of cases with Alito. On almost all of them, I thought their portrayal of those cases was pretty disingenuous. He thought the law went a certain way, and they didn't want it to go that way. They portrayed his motivations as having to do with the things Obama says here. He's continuing the same line of attack the others were giving. He just prefaces it with things that sound friendly. It's very hard for me to read this in the light of that context as being just about cases that there's no way to decide on the merits. He did indeed think the merits went a certain way on those cases.

It's very hard for me to read this in the light of that context as being just about cases that there's no way to decide on the merits.

So this is how you see it:
Alito/Roberts makes principled decision on a case. That decision is not to the liking of Obama. Obama argues, not on the principles of the case but on the context, that Alito's/Robert's is "callous". He, in your opinion, accuses them of being "a bold-faced liar with a hidden agenda".

This is how I see it:
Obama makes a principled decision about a confirmation hearing. That decision is not to your liking. You argue, not on the principles of Obama's speech but on the context, that Obama is "vicious". You, in my opinion, are calling Obama a flat-out liar with a hidden agenda.

Am I reading the script right?

I don't think Obama is lying. He naturally presents himself in a polite way, and people see it as moderate when he's not. They see it as nice when the content is very harsh.

I'm not sure where you think I called him vicious. You put the word in quotes, but I'm searching and can't find it. I said I wonder if his judicial appointment strategy counts as deception (but wanting to fall short of saying that it does), and I said it reveals that he's not really a moderate. I thought his comments about Roberts and Alito sounded nice but revealed an attitude that seemed to me to read certain motivations into their decisions that seem quite unjustified to me, to the point of sounding to me like name-calling rather than being willing to deal with the arguments of the cases. I don't think I used the word 'vicious' anywhere, though, did I?

I'm not sure the parallels you set up are really parallel, even given that I'm not calling him a liar with a hidden agenda (not much more than McCain would be for doing something similar, something I said is necessary in this political climate). One difference I see is that Alito and Roberts had authored opinions with public arguments, and he accuses them of lying in those opinions and really deciding based on emotions. I consider that to be a very serious charge, basically dereliction of duty and an impeachable offense. For a Senator to charge a federal judge with such a thing seems to me to be over the top unless he's going to present evidence that these cases really couldn't be decided because of the arguments actually presented by the judges in question.

On the other hand, my accusation against his principle decision involved a specific critique of the reasoning he presented. It's not just that it's not to my liking. I presented what I thought was wrong with his reasoning. I didn't just accuse him of deciding with his gut while ignoring his arguments. I discussed the argument he gave and pointed out why it's unsatisfying to me.

Another difference is that I was criticizing the reason he gave for not confirming Roberts and Alito. I don't think his reason was morally justified. What he was doing was criticizing the outcome of their judicial decisions, which are determined by the outcome but by the legal reasoning. He was then saying that these cases couldn't be determined by legal reasoning, when the opinions did in fact give judicial reasoning. So he used that as a pretext to ignore the arguments and simply argue against the conclusion. That seems to me to be a change of subject.

I'm not sure where you think I called him vicious. You put the word in quotes, but I'm searching and can't find it.

Oops. Sorry. I misremembered it as "vicious", but it was actually "cruel". As in "He crafts his rhetoric so it doesn't sound as bad when he does it, but what he does say can be pretty cruel."

I thought his comments about Roberts and Alito sounded nice but revealed an attitude that seemed to me to read certain motivations into their decisions that seem quite unjustified to me, to the point of sounding to me like name-calling rather than being willing to deal with the arguments of the cases.

It sounded to me like you were reading motivations and well, malice, into Obama's speeches where I didn't think there was any. That's why I set up the parallel. I know it's not a perfect parallel, but this is where I saw it.

Another difference is that I was criticizing the reason he gave for not confirming Roberts and Alito. I don't think his reason was morally justified. What he was doing was criticizing the outcome of their judicial decisions, which are determined by the outcome but by the legal reasoning. He was then saying that these cases couldn't be determined by legal reasoning, when the opinions did in fact give judicial reasoning.

I think we have different understandings of his 95-5% argument. His argument isn't that the last 5% can't be decided by judicial reasoning and therefore is nothing but a gut decision. His argument is that judicial reasoning can *correctly* lead you to decide *either way*. Correctly. That is, there is a correct line of judical reasoning that decides for the plaintif AND there is ALSO a correct line of reasoning that decides for the defendant.

In those cases, there isn't really a wrong decision per se. But if you consistently decide those cases in favor of the Powerful, that tells you something, doesn't it?

If I'm correct about how Obama views the 95-5% argument, then he doesn't see them as "lying in those opinions" and he's certainly not accusing them of "dereliction of duty and an impeachable offense". Obama isn't saying that they're bad judges--he goes out of his way to call them good ones. He just thinks that they could have made *better* decisions in certain cases, and he's holding out for better.

On the other hand, my accusation against his principle decision involved a specific critique of the reasoning he presented.

But when I attempted to refute that crituque, you claimed that the reason you wouldn't accept the refutation was something outside of the argument altogether. While there is a charitable and logically sound reading of Obama's speech, you won't accept it, not becuase of the "reasoning he presented" but because of the political context. That's why I felt like there was a parallel to be made. Not simply that you didn't agree with Obama, but that you accused Obama of ignoring the principles of Alito/Roberts while yourself dodging/dismissing the principles of Obamas speech.

I wasn't calling his attitude cruel. I don't know about that. I do think the content of what he said sounds a lot more cruel when you examine its implications than it does when you first hear it. I'm not sure it's malice. It's surely dislike for the results, and it sounds as if he's reading bad motivations into that. But I'm not going to project any motivations onto him. It's the content of his speech that I'm interested. People were saying he's nicer and gets along better, and I thought the content of those two speeches was not in reality as nice as it comes across as.

I do have trouble with your interpretation of the 5%/95% statement. Let me quote him:

In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

This does seem troubling to me. The assumption here is that your heart is going to tell you whether affirmative action is the right response to discrimination, regardless of the actual philosophical discussions of the principles behind affirmative action or the empirical questions about whether affirmative action does in fact accomplish what it's intended to support. The assumption is that if you have your heart in the right place, then you'll decide the issue the right way. Since Obama has a view, he obviously thinks his view is the one someone will come to if their heart is in the right place. So someone with the right emotions will agree with Obama on affirmative action. Since Roberts and Alito seem not to in these 5% cases, their hearts aren't in the right place.

Again, there's an issue of whether a general right to privacy gives a right to abortion. That's a philosophical question, not a question purely of the heart. His assumption seems to be that if you care about the plight of women making difficult decisions of abortion, then you're going to answer that question in a certain way, and if your heart is in a different place then you'll answer it a different way. Again, Obama has a view, and he must think his view is the right one. The only way to come to such a view, he has said, is to have your heart in the right place. So Alito and Roberts don't have their heart in the right place with regard to the plight of women making difficult decisions about abortion.

And so on with the other issues. This just doesn't strike me as non-partisan or moderate content, even if his way of framing it sounds nice until you look closely at how he's saying it. Contrast Senator Lindsey Graham's speech at the close of the Roberts hearings. He went way out of his way to acknowledge that people on both sides of these conflicting issues both want what's best but disagree about how to achieve that. He complained that we too often accuse people of having their hearts in the wrong place. It seems to me that Obama in these speeches does do what Graham was complaining about people on both sides doing, and thus in this respect he is engaging in decidedly partisan debate tactics.

I don't think he intended to represent Roberts and Alito as monsters. I just think it baffles him how a decent person with this level of intelligence could possibly think there's anything bad about affirmative action or that it's so wrong to have an abortion that we should prevent people from doing it. So he slips into speaking of them as if they must be indecent deep down, all the while continuing to say that they affirm deep principles of justice and equality. There's a tension in his wanting to take them at face value and his deep commitment to the impossibility of anyone ending up with opposite views from his once they have their heart in the right place, so he goes back and forth between the two things, not wanting to insult them but slipping into it anyway.

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