I’m afraid Obama has a very selective definition of empathy. Explaining his Senate vote against confirming John Roberts to the Supreme Court, Obama singled out several issues where “what is in the judge’s heart” really matters, including “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.” But it’s precisely that interpretation of the Commerce Clause that allowed the Supreme Court to strike down California’s medical marijuana law in Gonzales v. Raich. So where’s Obama’s “empathy” for the state’s suffering medical marijuana users?
What issue(s) will dominate the court over the next three years and why?
Given the recent split among the federal circuit, it shouldn’t be too long before the Supreme Court decides whether the Second Amendment applies against state and local governments. And with Obama’s continuation of George W. Bush’s foreign adventures, we’re likely to see plenty more cases dealing with anti-terrorism policy.
Damon W. Root is an associate editor at Reason magazine.
Ilya Shapiro
Who should Barack Obama nominate for the Supreme Court and why?
Richard Epstein, Randy Barnett, Roger Pilon, Clint Bolick, Chip Mellor, Douglas Ginsburg, Janice Rogers Brown, Andrew Kleinfeld, Diarmuid O'Scannlain, Eugene Volokh, Eric Posner, Jack Goldsmith, Miguel Estrada... Realistically, he should pick Diane Wood—and not just because I had two classes with her in law school! Of all the candidates on the (long) shortlist, she has the biggest brain and most judicious temperament, would be no worse than the others—and quite possibly better—on constitutional issues, and would be least likely to damage the economy.
Who will Obama nominate and why?
Elena Kagan. She was only recently vetted and confirmed as the first female solicitor general—with the support of many conservative professors and former government officials—but, with a fine academic resume that lacks experience as an advocate, is actually better suited to a judicial role. The president will calculate that he won't have to use much political capital on Kagan, saving the fight over a more controversial nominee who could help with an important demographic (such as Sonia Sotomayor) for closer to his re-election campaign.
Obama says that his ideal Supreme Court justice would have the "empathy" to identify with society's downtrodden. Do you agree with his criteria?
No, while empathy might be among the qualities to look for in a legislator, or even a family court judge, the things that make a good justice are quite different. The role of any judge is to apply the law to the facts, respecting the integrity of the judicial process and the limits of judicial power; for example, when Judge Learned Hand bade Justice Oliver Wendell Holmes to "do justice," Holmes replied that alas he could only administer the law. Obama should thus focus on legal skills and judicial temperament, and leave the talk of empathy or "the daily realities of people's lives" to talk show hosts.
What issue(s) will dominate the court over the next three years and why?
The first is the fallout from the economic crisis: Will contracts be rewritten—by courts or the administration—and will there be any checks on what the federal government can do? The second (although this might not be so noticeable in just three years) is cases resulting from technological advancements; intellectual property to be sure, but also biotechnology, social networking/privacy issues, and a host of other legal claims only the most creative lawyers can imagine. The third, and the most dangerous to my mind long-term, is in the escalation of the battle between classical liberal and transnational progressive legal theory. Purveyors of customary international "law"—rule by self-anointed legal elites—undermine national sovereignty, democratic legitimacy, republican forms of government, and, thereby, the liberty guaranteed by our Constitution.
Ilya Shapiro is a senior fellow at the Cato Institute's Center for Constitutional Studies and the editor in chief of the Cato Supreme Court Review.
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|5.21.09 @ 12:20PM|#
Janice Rogers Brown. She's a black woman, and that's all that matters. She's also good on some issues that some Democrats like. No, really!
[While being dragged away by the Stasi] No, really, it's okay! Appoint her, damn you, appoint her!!! Don't tase me, bro'!
Face the Muzak|5.21.09 @ 12:21PM|#
Maybe you guys could get an interview with Jan Crawford Greenberg. Now there's someone who understands the SCOTUS.
SpongePaul|5.21.09 @ 12:30PM|#
Too bad Judge Napalataniano or however you spell it is not in the running, he would get most things right.
|5.21.09 @ 12:38PM|#
Confident predictions:
(1) Obama's nomination will be catastrophically bad on limited government issues.
(2) The Republicans will makes fools of themselves and squander an opportunity.
(3) Obama's nomination will be approved.
|5.21.09 @ 12:45PM|#
What's to discuss? We are getting ass raped by progressively bigger cocks.
The left/right makeup of the SCOTUS is meaningless, as they both favor fucking us.
|5.21.09 @ 1:04PM|#
The nominee should not be one who is an Ivy grad. He or she should have no government employment in their background.
Warty|5.21.09 @ 1:13PM|#
He or she should have no government employment in their background.
He should also smell like rainbows and shit out Twinkies.
|5.21.09 @ 1:14PM|#
Female. Probably not white. Legal expoerience and judicial philosophy will only be considered by the Obama staff after that.
Joel|5.21.09 @ 1:16PM|#
...their views on what sort of justice Obama should-and will-appoint to the Court...
Both sorts are probably pretty well known, in general terms. They're way not the same list.
|5.21.09 @ 1:18PM|#
And in general, in the confirmation process the more libertarian a Republican-proposed candidate seems, the harsher the confirmation. Big government conservatives are always more preferable to Democratic Senators.
In the past, Republicans really haven't fought Supreme Court nominations. Justice Ruth Ginsburg was confirmed 96 to 3; Stephen Breyer 87 to 9. That almost qualifies as the Republicans getting it right from a libertarian point of view; to me, Breyer is almost the anti-libertarian justice. He's certainly the anti bright line, pro "balancing" pragmatic justice. Ginsburg is considerably better on civil liberties than Breyer.
Barry Loberfeld|5.21.09 @ 1:20PM|#
What we don't need from Obama: another Breyer:
To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible?
At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ...
READ "The Strange Case of Justice Breyer and Mr. B."
|5.21.09 @ 1:30PM|#
Warty-
If one smells like rainbows, one should not be shitting twinkies.
|5.21.09 @ 1:33PM|#
What's to discuss? We are getting ass raped by progressively bigger cocks.
Well, the color of the cock - I expect the professional jounalists and chattering class to discuss that for endless and painful hours about if the cock is brown enough. What about strap ons? I've heard that they let girls on the court now too.
Actually discussing - and actually placing primary importance on - Liberty? fuck that noise.
|5.21.09 @ 1:34PM|#
File under duh:
Most of us here would be happy if one of us was nominated and confirmed, narcissism of minor differneces aside (to borrow a phrase recently discussed).
kinnath|5.21.09 @ 1:34PM|#
I still betting on an Asian Lesbian . . . .
Warty|5.21.09 @ 1:35PM|#
libertymike - I was offered a deep fried chocolate covered Twinkie the other day. I passed.
Zeb|5.21.09 @ 1:40PM|#
"permits citizens to govern themselves"
I think he meant "govern each other". You don't really need a government to govern yourself, do you?
|5.21.09 @ 1:46PM|#
Check out this Onion-style parody of Obama's criteria for picking judges:
http://optoons.blogspot.com/2009/05/obama-unveils-new-statue-at-us-supreme.html
Warty|5.21.09 @ 1:51PM|#
It's trying too hard, Read.
|5.21.09 @ 2:00PM|#
We need one justice who represents the 10% of Americans who are one stripe or another of libertarian. Affirmative action at work, people!
Xeones|5.21.09 @ 2:11PM|#
Amen, Pro Lib! I hereby nominate Radley Balko. Yo, fuck "new professionalism."
Fist of Etiquette|5.21.09 @ 2:55PM|#
Kaminer's disdain for identity politics couldn't be characterized as fanatical, I guess. That's a bullshit qualifier if I've ever seen one.
proud libitard|5.21.09 @ 3:47PM|#
politics be damned...we need a hotty!
Like this lady http://www.tvweek.com/blogs/cristina-perez/2008/10/23/JudgeCristinaSmall.jpg
Kreel Sarloo|5.21.09 @ 4:06PM|#
Obama will follow the james Watt principle:
"a black, a woman, two Jews and a cripple."
Noone will admit it and Watt got a lot of flak for saying it, but that's pretty much been the formula for quite a while now.
Kreel Sarloo|5.21.09 @ 4:15PM|#
And naturally, Napolitano is out.
With Scalia and Alito the Italian quota is full.
|5.21.09 @ 4:47PM|#
Nominate lonewacko.
It would sure make the SCOTUS a hell of a lot funnier.
|5.21.09 @ 4:52PM|#
Is it just me, or is there something suspicious about a panel of 13 experts two of whom are named "Ilya"?
Randy|5.21.09 @ 6:01PM|#
RL -- It's just you.....
Telly|5.21.09 @ 8:24PM|#
He'll nominate Michelle. She's been bitching about the first lady not being a paid job title, you know.
Judge Dredd|5.22.09 @ 12:50AM|#
I am the law!!!!
Craig|5.26.09 @ 7:28PM|#
President Obama should nominate a person with proven experience and integrity who has also demonstrated a deep understanding of the Constitution as a document designed to secure liberty through limited government.
My thoughts exactly, but I don't expect him to nominate the person who best fits that description: Ron Paul.
Andrew Napolitano would be a good second choice, though, and younger than Paul.
Scarpe Nike Italia|8.9.11 @ 5:05AM|#
is good