November 13, 2008
TO: JCN Members, Allies, and Interested Persons
FROM: Wendy Long, JCN Counsel
RE: Obama Judicial Nominations
Like many of you, we at JCN were disappointed that the federal courts received so little attention during the presidential campaign.
But here is the good news. We remain very bullish on the judges issue. Four essential points:
1. Post-election polling shows Americans care about judges.
The Polling Company did a nationwide survey of 600 actual voters in the election last week. It shows that 45% of actual voters said the kind of judges the next President would nominate to the Supreme Court and other federal courts was their "top issue" or "one of my top five issues" that they care about. Another 24% identified it as "one of my top ten issues." So 69% of actual voters care and will pay attention to messages about the courts. The question isn't whether judges are a voter's #1 issue (in most cases, that's always the economy), but whether judges are in their basket of top concerns.
2. Actual voters favor judicial restraint by more than 2-1.
The same survey shows that actual voters prefer the President to nominate Justices and judges who "believe that their role as judges is solely to evaluate whether a law or lower court ruling is in line with the Constitution" (67%) instead of jurists who "take into account their own viewpoints and experiences" (24%).
3. Barack Obama has made some serious mis-steps on judges.
Senator Obama stated during the campaign that his criteria for selecting judges would be: "somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage Mom . . . to be poor, or African-American, or gay, or disabled, or old." This is not a mode of judicial decision-making; it is political judging, completely untethered from the law, based upon the passions and personal views of the judge himself. Candidate Obama has made an unprecedented departure from what past Presidents Democrat and Republican alike have said about the enterprise of judging and the kind of nominees they would seek.
The Obama model of judging is the exact opposite of the American model of impartial and dispassionate judging on which our Constitution is premised. And a majority of actual voters recognize this: 53% said judges should "apply the law the same to each person regardless of an individual's background or cultural or economic circumstances."
Actual voters do not share the Obama view that judges should "side with" politically correct interests or with anyone. Judges are supposed to be impartial and uphold the law, period.
4. Senators can be held accountable for votes on Obama nominees.
When Obama nominees come through the Senate for confirmation votes, we can work hard to make the nominees' records and the Senators' positions and votes on them known to the American people, enhancing transparency and accountability on judicial nominations.
Republicans have never stooped to the tactics the Democrats have used, like obstructing and filibustering nominees, refusing to vote on their merits, or making unfounded personal attacks and smears on their character and records.
We should never engage in the kind of behavior that Democrats have directed at honorable and highly qualified nominees. And we must respect the discretion inherent in the important task that the Constitution commits to the President of nominating federal judges.
But because candidate Obama announced a dramatic and unprecedented departure from the historic, commonly understood criteria for judicial nominees, he has shifted the burden of proof somewhat: it is now incumbent upon him and his administration, and the nominees themselves, to demonstrate to the American people that they will interpret the Constitution as it is written and not make it up as they go along, based on their own personal views.
Careful scrutiny by the Senate is certainly called for, and all of us can help in that task. We must ourselves scrutinize Obama nominees very carefully, and let the American people know what they are getting. We should view the votes on Obama judges as great opportunities. Far from preventing such votes, we should welcome them. Senators will be accountable for those votes in their home states.
All of us who have worked so successfully in the past as part of this judicial coalition should embrace this new opportunity to focus attention on an issue that has been inadequately covered in the public eye and that Americans nonetheless care deeply about: a limited judiciary, democratic self-government, and judicial restraint.
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