Obama and the Supreme Court

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Favoritism
When the nomination of John Roberts as chief justice of the Supreme Court came up in the Senate in 2005, Obama argued that the role of a justice is to favor the "weak" over the "strong."

When the nomination of Sam Alito as an associate justice came up in January 2006, he made the same argument.

Obama does not want a Supreme Court that preserves the rule of law, he wants a Supreme Court that wages class war under color of law.

So, in Obama's vision, who are the "weak" and who are the "strong"?  Who deserves to win the "hearts" of Supreme Court justices?  Who does not?

In contrast to his soaring campaign rhetoric about bringing America together, Obama's Senate speeches against Justices Roberts and Alito revealed a polarizing vision of America.  Minorities, women, employees and criminal defendants were among the weak; majorities, men, employers and prosecutors among the strong.
13 Questions
April 29th, -- George Will posed thirteen questions for Obama.

The first -- "Senator, concerning the criteria by which you will nominate judges, you said: 'We 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.'  Such sensitivities might serve an admirable legislator, but what have they to do with judging?  Should a judge side with whichever party in a controversy stirs his or her empathy?  Is such personalization of the judicial function inimical to the rule of law?"

And there's twelve more critical questions at this link -- worth a visit.
A Hillary Payoff?
Expectations among Senate Democrats are rising that if elected president, Barack Obama will reward Sen. Hillary Clinton's support with a Supreme Court nomination when one opens.

"It's the talk up here," says a key Senate aide. While confirmation would be difficult, the move is being encouraged by her supporters as a way for Obama to acknowledge Clinton's historic run for the White House.  "It would have a more lasting impact than being president."

Now, there's a truly scary notion.

As if Obama himself wasn't enough reason to vote for "anyone else," the thought of "Justice Clinton" ought to get the "I won't vote for McCain" conservatives down to the polls.
Top 10
The conservative-leaning Committee for Justice (CJ) is trying to rile supporters with a "Top 10" list of things to expect from the Supreme Court should Barack Obama be elected president and appoint his desired justices

"That very real possibility should frighten conservatives all the more when they consider that 1) by the end of an 8-year Obama presidency, Justices Scalia and Kennedy would be 80 years old, an age most men never reach, and 2) given the damage the Supreme Court has done to the rule of law since 1969, imagine what the Court would do if it regained a "solid liberal majority?"

Given Obama’s stances on various issues, CJ compiled this list with what their group believes Obama’s appointed justices would be capable of doing:

10. Expanding and perpetuating the use of racial preferences

9. Creating new constitutional rights to physician-assisted suicide and human cloning

8. Expanding judicial oversight of military detentions and CIA interrogations

7. Prohibiting tuition vouchers for religious schools

6. Banning the death penalty

5. Requiring taxpayers to fund essentially unlimited abortion rights

4. Creating new constitutional rights to massive government welfare and medical care programs

3. Stripping "under God" from the Pledge of Allegiance

2. Eroding property rights

1. Ordering all 50 states to bless gay marriage
Obama The Destroyer
Jeffrey T. Kuhner says stacking the high court is key to finishing off traditional America.

Obama is subverting the Supreme Court.  His latest pick for the high court, Solicitor General Elena Kagan, is a radical leftist who would rubber-stamp Obama's transformative socialist agenda.  She is not an independent, serious nominee, but an Obama ideological clone.

The Supreme Court is the nation's highest legal body.  It represents the apex of a separate branch of government designed to serve as a pivotal check and balance against the executive and legislative branches.  A functioning democracy based on the rule of law depends upon an independent judiciary -- especially, a Supreme Court immune from the corrosive grasp of political power.

This is why dictators and socialist autocrats often seek to control their nations' supreme courts: By imposing their will on the high court they can bend the nation's judiciary to submit to their rule.  Dominating the high court removes a major institutional bulwark to consolidating state power.  Hence, our Founding Fathers believed that Supreme Court justices should be individuals of the highest intelligence, character, moral integrity, political independence and fair-minded temperament. They are not -- and should never be -- partisan hacks.

Ms. Kagan is unfit to sit on the high court. She is an incompetent apparatchik, whose only purpose is to blindly advance Obama's revolutionary progressivism.  She possesses no judicial experience; never once being a judge.  Her litigation background is thin.  She is neither an accomplished lawyer nor jurist.  She is no Oliver Wendell Holmes.

Her liberal defenders insist Kagan has a first-rate legal mind.  She is an academic, having served as dean of Harvard Law School.  This supposedly qualifies her to be on the Supreme Court.  It does not.  Unlike other constitutional scholars, Kagan has not written any books.  Her body of written work is sparse and shallow.  Besides several articles and book reviews, she has produced nothing of consequence.  She is a mediocre bureaucrat, who has excelled mostly at climbing the greasy pole of academic politics.

Moreover, Kagan was a corrupt administrator, who turned a blind eye to plagiarism by prominent Harvard faculty members.  Confronted by overwhelming evidence that scholars Laurence Tribe and Charles Ogletree -- two leading liberals on campus -- had pulled word-for-word, direct material from other authors, she effectively gave them a slap on the wrist.  If students had committed the same offense, they would have been rightly suspended or expelled.  She oversaw the creation of a two-tier system: one set of rules for leftist academics, another one for the student body.

As dean, she prevented military recruiters from coming on campus.  The reason: She opposed the "Don't ask, Don't tell" policy on homosexuals serving in the military.  Her active opposition to military recruitment took place during a time of war. American troops were fighting -- and dying -- in Iraq and Afghanistan.  They needed every soldier and official possible.  Kagan's dogmatic liberalism trumped patriotism.

The real -- and only -- reason Kagan has been selected is that she is a partisan ideologue.  She worked as a policy aide under the Clinton administration.  She is Obama's solicitor general, arguing the administration's cases before the Supreme Court.  Abortion, gay rights, affirmative action, school prayer, the war on terror, the constitutional legitimacy of Obamacare -- she will vote the Obama line on every issue.

Continue reading here . . .

Obama Amps Up Liberal Court Nominee

Jillian Bandes says that up until now, Obama’s lower court nominees up have been fairly milquetoast -- run-of-the-mill liberals with relatively tame political agendas.  But judicial observers say that Goodwin Liu, Obama’s nominee to the uber-liberal Ninth Circuit court, is a horse of a different color.

"In Goodwin Liu’s world, the Constitution requires redistribution of economic resources pretty much on a Marxist basis, to those according to their need from those according to their ability," said Ilya Shapiro, a legal analyst with the libertarian Cato Institute.  "He thinks that because there’s a social consensus, he believes people should have things like food and health care, as a matter of policy."

Indeed, in 2006, Liu argued that the 14th Amendment should be interpreted to include "basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit."

Liu’s record also includes explicit support for extending these rights to illegal aliens.  In his view, the United States government is obligated to provide child care and health insurance to everyone within our borders.

"We should not use the concept of citizenship to deny education to noncitizen children, not least because the Equal Protection Clause extends to 'persons,'" he wrote.

This assessment of the 14th Amendment, and the Equal Protection clause, is one of the most severe examples of liberal constitutional interpretation in recent memory, says Shapiro.  But Liu’s appointment as Associate Dean and Professor of Law at the University of California Berkeley School of Law makes him uniquely suited to disseminate those views from an authoritative platform.

Liu is widely published in legal journals and has held high-ranking positions in the American Civil Liberties Council of California, as well as the liberal American Constitution Society of Northern California and the National Women’s Law Center.  He’s testified in front of Congress on numerous occasions, and his opinion frequently appears in national media outlets.

"He purports to advocate an approach based on constitutional fidelity," said Shapiro.  "What this means to Liu is fidelity policy ideas of progressive judges that are interpreting the Constitution."

Liu is staunchly against a traditional view of marriage and has ruled in favor of lawsuits protesting the mention of "God" in the Pledge of Allegiance.  Before becoming a judge and academic, Liu practiced law for only two years.

There are enough Democratic Senators to make Liu’s confirmation, slated for next month, a likely prospect.  But momentum has not yet built around this nominee, and given his record, that might not be a good thing for him.
Obama’s Judicial Nominee Hides Leftwing History

Judicial Watch is reporting that the ardently leftist California law school professor nominated by Obama to become a federal appellate court judge suspiciously concealed more than 100 of his most controversial speeches, publications and other background materials from the U.S. Senate committee that screens judicial candidates.

 

Obama’s pick to fill a vacancy on the 9th Circuit Court of Appeals, UC Berkeley Professor Goodwin Liu, conveniently omitted a mountain of contentious material that could hurt his confirmation process.  The records shed light on Liu’s leftist positions in areas such as "constitutional welfare rights," affirmative action, judicial activism and immigration.

 

The 39-year-old scholar, who has practiced law for only three years, hid questionable speeches on affirmative action, his participation at events sponsored by the notoriously leftwing Center for Social Justice and the influential Latino advocacy group National Council of La Raza, among others, from the Senate Judiciary Committee.

 

This week the committee’s ranking member, Alabama Republican Jeff Sessions, said Liu’s nomination is in jeopardy after the "extraordinary omission of 117 Items from record."  At best, this nominee’s extraordinary disregard for the committee’s constitutional role demonstrates incompetence; at worst, it creates the impression that he knowingly attempted to hide his most controversial work from the committee, Session says.

 

The  "glaring omissions" were reluctantly provided by Liu only after the committee discovered them independently and are detailed in a lengthy letter from Republican members to Chairman Patrick Leahy.  Among them is Liu’s commencement speech to UC Berkeley Law, his participation in a panel entitled "What the 2008 Election Will Mean for the Supreme Court," and his participation in a presentation entitled "The Fate of Affirmative Action from the O’Connor Court to the Roberts Court."

 

Leahy, a Democrat from Vermont, has praised Liu as a "great American story," and claims he has "sterling credentials."  The son of Taiwanese immigrants, Liu will bring much-needed diversity to the federal bench, Leahy says, because there are currently no active Asian American federal appeals court judges in the country.

 

Liu should fit right in at the ridiculously liberal 9th Circuit which has been overturned more than any other court and covers Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and the Northern Marianas.  Among its latest rulings of note is that a violent felon with multiple convictions can’t be deported because tattooed criminals like him are harassed by gangs and police in his native El Salvador.

 

There's that damned "diversity" thing again.  Diversity gave us Nidal Hasan.

Obama Wants Judges To Promote Agenda
Rick Klein says that as Obama considers his options for a Supreme Court vacancy, Senate Republicans are preparing to use the upcoming hearings to explore what they say is the expanded role of government under the Obama presidency, the top Republican on the Senate Judiciary Committee told ABC News.

Sen. Jeff Sessions, R-Ala., said in an interview that Republicans are planning a sharp focus on Obama's approach to governance -- regardless of who he nominates -- to ensure that the newest member of the high court won't be a "rubber-stamp" for the Obama agenda.

"It's pretty clear to me that President Obama sees judges as allies in an effort to promote an agenda he thinks is best for the country," Sessions said.  "And a lot of people see it that way -- he's just part of that movement."
Should Conservatives Go to War over Kagan?
Jennifer Rubin reports that Obama is expected to nominate Elena Kagan to the Supreme Court today. The question for conservatives is whether they should oppose such a nomination, and, if so, how hard.  Chris Good writes:
    

I asked Carrie Severino, chief counsel and policy director of the Judicial Crisis Network (a conservative group focused on judicial nominees) what conservatives are going to say about Kagan, and what Kagan’s "wise Latina" moment, if there is one, will prove to be.

"She has been much more careful than Justice Sotomayor.  She never would have said something like that even if she thinks it.  She’s been so careful for so long that no one seems to know exactly what she does think," Severino said.

Severino attended Harvard Law School, where Kagan served as dean.  She asked fellow Harvard people about Kagan’s tenure as dean.  "Everyone came back with the same perspective, which was she was careful to never say anything on the record, or off the record, to anyone about her own opinions, so I think she’s been carefully shepherding her image for a long time, possibly ever since her DC circuit nomination by President Clinton, so that’s a long time to effectively live on the short list."

    
This is not to say that Kagan would take an originalist view of the Constitution or that her support for law schools’ position on military recruiters doesn’t betray a willingness to conflate liberal policy goals with Constitutional interpretation.  But is she as objectionable as a judge, for example, who went to great lengths to support racial quotas and delivered the "wise Latina" speech?  Well, one can bemoan her lack of judicial experience and scant writing record but should her nomination be opposed with a full court press?

At this point -- and more might be revealed in hearings and upon the examination of her written work -- I would think not.  She frankly has not proven herself to be as adept a legal scholar as someone like Diane Wood, who would wow and sway the other justices.  (It is intellectual argumentation rather than social charm that makes the difference on the Court.)  So there could be worse -- that is, more "dangerous" picks from a conservative perspective.  Kagan has not made her life’s work the promotion of minority victimology.  She isn’t without academic qualifications.  So, while she’s not a judge conservatives would nominate, it’s hard to conceive of a reason for rigorously blocking her nomination.

This is the price of losing elections: the other side gets to govern and thus help shape the direction of the courts.  It’s a reminder to find adept presidential nominees who can win and who will nominate judges at all levels who appreciate the proper role of the courts in our democratic system.

That Kagan is Obama's first choice is prima facie evidence that she should never sit on the Supreme Court.  Kagan is just another Chicago insider, with no written track record and extreme leftist leanings.  She's anti-military, anti-American, and hateful -- and she's not even a judge -- her primary qualifications -- she's a lesbian and is there to normalize homosexual unions in the law.
Obama Nominates Himself
Philip Klein says writing in the Washington Post in February, law professor Jeffrey Rosen made the provocative suggestion that President Obama should nominate himself to the Supreme Court.  On Monday, Obama ended up doing just that.

Well, sort of.

In Elena Kagan, who is just one year apart from him in age, Obama has found somebody whose biography, temperament, and values (as far as they are known) closely resemble his own.  Kagan and Obama Go Way Back.  They met at University of Chicago in the '90s.

Like Obama, Kagan graduated Harvard Law School and taught law at the University of Chicago.  Look into the backgrounds of Obama and Kagan, and you’ll find evidence of radicalism that was tempered by personal ambition.  Obama served as the first black president of the Harvard Law Review and Kagan was the school’s first female dean, and they both had a reputation for treating conservatives fairly, despite ideological disagreements.  Just as Obama ran for president on a thin public record, Kagan doesn’t offer much of a paper trail, leaving her views on many key issues open to speculation.

In 1980, according to the Daily Princetonian, Kagan got drunk on election night after liberal Democrat Elizabeth Holtzman lost a Senate race in New York, and regularly wrote editorials taking ideologically liberal positions.

"Where I grew up -- on Manhattan’s Upper West Side -- nobody ever admitted to voting for Republicans," Kagan wrote after that election, according to the New York Times.  As a child growing up in New York City, she wrote, those who were elected to political office were "real Democrats -- not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government."

As her undergraduate thesis topic, Kagan chose to write about the demise of the American socialist movement, a story which she called "a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America.... In unity lies their only hope."

She explained in the acknowledgements that her brother’s "involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas."

While such statements will be repeated within conservative circles, they are unlikely to seriously damage her confirmation chances, just as connections to terrorist Bill Ayers, former PLO spokesman Rashid Khalidi, and Rev. Jeremiah Wright didn’t prove fatal to Obama’s presidential campaign.

Paul Mirengoff says:
    

She has no judging experience.

She has little experience as a practicing lawyer.

She has approximately one year of experience as Solicitor General of the United States.

She has lots of experience in academia, but has published only a small amount of scholarly work, none of which seems particularly noteworthy.

As the dean of Harvard Law School, she was tolerant of conservative law professors, but not of the United States military.

   
Most Transparent Administration Ever
The Kagan Watch blog is reporting that in a letter to Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, Robert Bauer, counsel to Obama, implied Obama may use executive privilege to hide some memos Elena Kagan wrote when she served in the Clinton White House.

"President Obama does not intend to assert executive privilege over any of the documents requested by the Committee," Bauer writes.

"Of course, President Clinton also has an interest in these records, and his representative is reviewing them now," he adds.

The Clinton library has more than 150,000 documents related to Elena Kagan that show Kagan to be a zealous, doctrinaire liberal.  This is one of the few sources we have to know what Kagan thinks on many issues.

Read the letter here.

For the second time in a week, Bill Clinton is being used as cover for Obama.  The Clinton Library must be on the list to receive zillions.

RelatedDocuments Show Kagan's Liberal Opinion on Social Issues.
Our New Dictator May Be In Deep trouble
According to sources who watch the inner workings of the federal government, a smackdown of Barack Obama by the U.S. Supreme Court may be inevitable.

Ever since Obama usurped the Oval Office, critics have hammered him on a number of Constitutional issues.

Critics have complained that much, if not all of Obama's major initiatives run headlong into Constitutional roadblocks on the power of the federal government.

Obama certainly did not help himself in the eyes of the Court when he used the venue of the State of the Union address early in the year to publicly flog the Court over its ruling that the First Amendment grants the right to various organizations to run political ads during the time of an election.

The tongue-lashing clearly did not sit well with the Court, as demonstrated by Justice Sam Alito, who publicly shook his head and stated under his breath, "That's not true," when Obama told a flat-out lie concerning the Court's ruling.

As it has turned out, this was a watershed moment in the relationship between the executive and the judicial branches of the federal government.  Obama publicly declared war on the court, even as he blatantly continued to propose legislation that flies in the face of every known Constitutional principle upon which this nation has stood for over 200 years.  Obama has even identified Chief Justice John Roberts as his number one enemy, that is, apart from Fox News and Rush Limbaugh, Beck, Hannity, and so on.  And it is no accident that the one swing-vote on the court, Justice Anthony Kennedy, stated recently that he has no intention of retiring until "Obama is gone."

Apparently, the Court has had enough.

The Roberts Court has signaled, in a very subtle manner, of course, that it intends to address the issues about which Obama critics have been screaming to high heaven.  A ruling against Obama on any one of these important issues could potentially cripple the Administration.  Such a thing would be long overdue.

Continue reading here . . .
Has The Supreme Court Rendered Itself Irrelevant
JTX says it seems that history -- and literature -- are known to repeat themselves.  I refer to the short story printed in 1894 by a certain A. C. Doyle entitled "Silver Blaze" which contains what must be one of the better-known Sherlock Holmes comments when Holmes mused about, "… the curious incident of the dog in the night-time …".
    

"The dog did nothing in the night-time." -- and Holmes responded:

"That was the curious incident."

    
That exchange of course brought me to the title for this commentary.  Just as in the Silver Blaze story when the Scotland Yard detective interjected his comment, it was abundantly clear that in the recent case of Kerchner et al v. Obama et al that the Supreme Court Justices also did nothing.  The real question, then, becomes WHY??

If you studied the legal submissions of Attorney Apuzzo in the case, you would see that not only were the sham objections and legal fictions of "standing," etc. created out of whole cloth by the Justice Department well overcome by the submissions, but the Court even ignored the words of Chief Justice John Marshall (called "The Great Justice" for good reason) when in Cohens v. Virginia (1821) it was concluded in a unanimous decision that the Supreme Court had jurisdiction to review state criminal proceedings.  Chief Justice Marshall wrote that the Court was bound to hear all cases that involved constitutional questions, and that this jurisdiction was not dependent on the identity of the parties in the cases.  Marshall argued that state laws and constitutions, when repugnant to the Constitution and federal laws, were "absolutely void."

Marshall’s exact words on the matter in that case were:
    

It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.  The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution.  We cannot pass it by because it is doubtful.  With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us.  We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given.  The one or the other would be treason to the Constitution.  Questions may occur which we would gladly avoid, but we cannot avoid them.  All we can do is to exercise our best judgment and conscientiously to perform our duty.  In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States.  We find no exception to this grant, and we cannot insert one.

    
… and yet the Justices (or at least six of them) took it upon themselves, like Holmes’ dog in the night, to remain silent, and by doing so committed "… treason to the Constitution …" as Marshall mentioned.  Even the two Obama-appointed Justices chose to NOT recuse themselves although they had ample financial, political, and professional standing reasons for doing so.  Most people would recognize -- at the very least -- the appearance of partiality or bias by Sotomayor and Kagan as being beholden to the person who appointed them if not their multimillion-dollar financial windfall that such a lifetime appointment entails (say, 35 years at $150,000 per year, or about $5.25 million apiece).

All of the above makes one wonder if the observation by Sherlock Holmes does not indeed apply here in "The Curious Incident of the Justices That Did Not Bark!!!" when indeed they most assuredly should have.

Then again, perhaps the Justices are no worse that the figurehead who appointed them since he has chosen to "not bark" about his early life records also.  The oddest thing is what Holmes had noted -- why did no one not notice and pursue the matter???
 

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