Over at The Volokh Conspiracy, Orin Kerr highlights Barack Obama's recent response to the Detroit Free Press about the sort of Supreme Court justices he'll appoint if elected. Here's a snippet of Obama's answer:
Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.
I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today…. So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.
I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.
That, I think is the kind of justice that I'm looking for--somebody who respects the law, doesn't think that they should be making law…but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.
That's at least a better answer than the one he gave to Planned Parenthood last year, where he described his ideal justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden. Occasional adherence to the Constitution is better than none at all, though Obama's slippery position on the Second Amendment shows just how far his "fidelity" to the Bill of Rights goes.