Obama re-emphasizes the importance of the judiciary

July 10, 2008

Earlier this week, Ben Adler and Avi Zenilman noted, “Despite his background as a lawyer and law lecturer at the University of Chicago, Barack Obama has said little from the stump about legal issues, particularly what sort of justices he’d want on the Supreme Court, whose makeup is likely to be shaped for decades to come by the next president’s nominees.” I think that’s probably a fair assessment.

It might just be a question of perception, but conservative activists routinely put questions about the judiciary at the top of their list of priorities. There’s ample evidence that the left takes judges seriously, but it doesn’t seem to carry the same salience. As such, John McCain seems to emphasize the judges he’d appoint more than Obama does.

There’s at least some indication that’s beginning to change. This morning in New York, Obama talked about the Ledbetter ruling on equal pay at the Supreme Court, and pivoted to a broader discussion on the judiciary.

“[L]et’s be clear, the Supreme Court’s ruling on equal pay is just the tip of the iceberg in terms of what’s at stake in this election. Usually, when we talk about the Court, it’s in the context of reproductive rights and Roe v. Wade. And make no mistake about it, that’s a critical issue in this election. Sen. McCain has made it abundantly clear that he wants to appoint justices like Roberts and Alito – and that he hopes to see Roe overturned. Well, I stand by my votes against confirming Justices Roberts and Alito. And I’ve made it equally clear that I will never back down in defending a woman’s right to choose.

“But the Supreme Court also affects women’s lives in so many other ways — from decisions on equal pay, to workplace discrimination, to Title IX, to domestic violence, to civil rights and workers’ rights. And the question we face in this election is whether we’ll have judges who demonstrate sound judgment and empathy, who understand how law operates in our daily lives, who are committed to upholding the values at the core of our Constitution — or judges who put ideology before justice, with our fundamental rights as the first casualty.”

Good. This makes two key points, that often go overlooked. First, when it comes to women’s rights, equality, and the courts, it’s about far more than just Roe. Second, it’s about time we put the judiciary on the front-burner when considering the list of issues that are going to help dictate the election.

As for the Republican response, the RNC’s Alex Conant weighed in soon after Obama’s remarks:

“In the Senate, Barack Obama is a strict partisan, rejecting the bipartisan ‘Gang of 14’ and voting against Roberts and Alito. But on the campaign trail, Obama recently sided with Roberts and Alito on gun rights and the death penalty. Considering his recent reversals and partisan record, rather than attack Justices Roberts and Alito, Obama owes the American people more than just political expedience.”

I just don’t get Republican talking points. Did Conant even read his statement before emailing it? Obama is a “strict partisan” who agreed with conservative justices on two big cases? If he’s a “strict partisan” wouldn’t Obama have disagreed?

For that matter, I’m glad Obama steered clear of the “Gang of 14”; they struck a bad deal.

And if the RNC wants to talk about presidential candidates and their “recent reversals,” I’m delighted to do so.

“… And the question we face in this election is whether we’ll have judges who demonstrate sound judgment and empathy, who understand how law operates in our daily lives, who are committed to upholding the values at the core of our Constitution — or judges who put ideology before justice, with our fundamental rights as the first casualty.”

In other words, no more Alito’s, Robert’s or Scalia’s, please. Scalia especially, that man is just plain frightening.

  • Obama has a far larger pool of candidates to pick Judges from. I don’t think this is gonna be an issue for him. It would be good if he picks a stellar Justice, but ultimately all he has to do is just to pick some one who does not suck. And in this event, this person would be 10 times better than a McCain pick.

    McCain would have a much smaller pool to pick from. He needs to find qualified conservative activists who who are pretty close to being committed to the funny farm. Remember, most conservatives candidates just don’t pass the litmus test. Kennedy – nope, O’Connor – no, Rehnquist – no.

    And since the litmus test is so narrow McCain will constantly kowtow to THE BASE on this issue.

  • I wonder, and certainly hope, if someone on the Obama campaign saw the article in Slate this morning by Doug Kendall and Dahlia Lithwick, entitled “Constitutional Drift: Obama veers to the Right, but does he need to take the Constitution with him?” They say it’s not “just” FISA, the separation of church and state and the decisions he’s commented on, like guns and capital punishment, but what he hasn’t said on rulings like the Exxon Valdez fine reduction and the campaign financing “millionaire’s law.” When McCain said that the Court’s decision reaffirming habeas corpus in the Guantanamo case was “the worst in the history of American law,” Obama said nothing. Wouldn’t that have been an opportunity to make your principles known? I’d like to hear him say something. Otherwise, who do we have here?
    http://www.slate.com/id/2195008/

  • Another Republican’t and conservative complaining that Obama isn’t liberal enough.

    Where do these morons think they get any standing to complain?

    I’m glad the Senator has talked so forcefully and thoughtfully about this.

  • RNC’s Alex Conant’s point is that Obama is being a typical politician and is only agreeing with Roberts/Alito as “political expedience” since his “partisan record” indicates he wouldn’t agree with them. The main point he is trying to make is Obama = flip/flopper.

  • Just a follow up. McCain’s campaign and the RNC have been pretty on-message lately and the main thing they are trying to achieve is to paint Obama as a flip/flopper and dishonest politician (more of the same, not change you can believe in etc) just like Kerry was.

    They release a statement like this after everything Obama says and accuse him of being a fake politician like the rest. This is combined with some cheesy like from McCain like “that’s not change you can believe in, my friends”. It’s been very consistent and this is just more of that. Hell they create it where it doesn’t exist, like with Obama’s Iraq press conference.

  • who understand how law operates in our daily lives, who are committed to upholding the values at the core of our Constitution

    After yesterday, I’m not convinced Obama understands the “values at the core of our Constitution.” Unless Russ Feingold and Chris Dodd are advising him on his Judicial appointments, I don’t think I can be confident in his choices.

  • So today, unlike yesterday with FISA, Obama thinks it’s important to be “committed to upholding the values at the core of our Constitution…” This reminds me of listening to Bush awhile back when he criticized Mugabe for using torture.

    There! I’ve done it! A former Obama supporter, I’ve compared him to Bush.

  • —It might just be a question of perception, but conservative activists routinely put questions about the judiciary at the top of their list of priorities.

    Conservatives want to make sure judges hand down the pre-determined ruling, no judgement here please.

  • I just don’t get Republican talking points. Did Conant even read his statement before emailing it? Obama is a “strict partisan” who agreed with conservative justices on two big cases? If he’s a “strict partisan” wouldn’t Obama have disagreed?

    To be fair to Conant, I believe his comment reads pretty clearly as trying to draw a distinction between how Obama votes in the Senate and how Obama presents himself on the campaign trail. He’s just pushing the same old line that when it comes to voting he’s ultra-liberal but when campaigning he panders to the middle.

    I really don’t agree with him, but the quoted questioning turns grammar around in a typical Republican tactic and I’d hate to see Democrats doing it too. Address the actual message, not some distortion of it.

  • “And I’ve made it equally clear that I will never back down in defending a woman’s right to choose.”

    Obama just did back down on a woman’s right to choose, last week when he said that mental distress was no basis for third trimester abortions. He substituted his own uninformed opinion for a woman’s right to choose (with her doctor) and he implied that mental health concerns do not affect physical health. This view is so ignorant of both women’s lives and health issues that one hardly knows where to begin. Does Obama know that pregnancy exacerbates post partum depression? Does he know that psychotropic drugs have side effects that are harmful to fetuses? Does he know the percentage of depressed individuals who commit suicide or the percent who harm their children or spouses along with themselves? Does he know what lives are like for children of depressed parents? Does he know the symptoms of other mental illnesses, the medications used to treat them and the consequences for mother and child? Does he know these things so well that he would substitute his own judgment about them for those of the medical community? Obviously not or he wouldn’t be taking a position that ignores an entire scientific literature. If he does know these things but is still taking such a position, then he proves himself willing to play politics with women’s health and he has no business being elected or appointing justices.

  • The Supreme Court already has a majority capable of overturning Roe v Wade. Most analysts consider it unlikely that would happen because the nation does not want Roe v Wade overturned (it would be an enormously unpopular decision) and because of the severe consequences to American life of making such a decision. It is nothing more than a conservative talking point used to attract a small minority of single issue voters to Republican candidates.

    Given that the court is already tilted toward conservatism and is already making some awful decisions, there is no great urgency to electing Obama, especially when he is showing that he isn’t much better than anyone else on key issues. It would just put one more dissenter in place, not change the majority rulings. I place more faith in the weight of responsibility over time causing the initially conservative justices to take their positions seriously and make decisions that will stand up to legal analysis and the test of time. Once they start thinking in those terms, worrying about their legacies and reputations instead of their loyalties to the guy who appointed them, the smarter justices inevitable become more “liberal.” So, I’ll take a smart, well-trained justice over one who passes a given political litmus test any time.

  • This morning in New York, Obama talked about the Ledbetter ruling on equal pay at the Supreme Court, — CB

    Good of him to remind us. Just as the Supreme Court nominations were the spur which would have made me vote for Clinton had she been the nominee, so do the same nominations form the tie that binds to post-FISA Obama…

  • Mary…Bush v Gore. “…So, I’ll take a smart, well-trained justice over one who passes a given political litmus test any time….” Is that what you mean?

  • Obama: “’ve made it equally clear that I will never back down in defending a woman’s right to choose.”

    How does he square his statement today with his statement of July 4?

    In an interview this week with Relevant, a Christian magazine, Obama said prohibitions on late-term abortions must contain “a strict, well defined exception for the health of the mother.”

    Obama then added: “Now, I don’t think that ‘mental distress’ qualifies as the health of the mother. I think it has to be a serious physical issue that arises in pregnancy, where there are real, significant problems to the mother carrying that child to term.”

    Last year, after the Supreme Court upheld a federal ban on late-term abortions, Obama said he “strongly disagreed” with the ruling because it “dramatically departs form previous precedents safeguarding the health of pregnant women.”

    The health care exception is crucial to abortion rights advocates and is considered a legal loophole by abortion opponents. By limiting the health exception to a “serious physical issue,” Obama set himself apart from other abortion rights proponents.

  • The health of the mother criterion has always been a part of abortion jurisprudence for late term/third trimester (/post viability in the post-Casey world) procedures. And Obama is right that there have been instances, or at least credible allegations, of physicians finding “mental distress” as a medical basis for performing such a procedure where going through with the birth would do no physical harm to the mother. Obama’s position seems right to me– a credible and substantial risk to the mother’s mental health might be sufficient to entitle her to a late-term abortion under the Constitution, but that exception should never be used as a pretext to circumvent the law.

  • Maha did an excellent job in looking at the mental health exception for late term abortions. She, who is a strong advocate of the right to choose, sides with Obama. I came away convinced. It is well worth a read.

  • More to the point of this post. I’ve always thought that the right wing used abortion to get the support that they needed to get elected in order to appoint authoritarian corporatist judges. It’s good to see that Obama has the same take on the issue, even if he chose not to use my inflammatory characterization of the situation.

  • JRD

    That isn’t what Obama is saying. He’s saying “no late term abortions should be permitted if the decision is based on the mental health of the woman”.

    Unless one works in the medical field or otherwise with women who are unwillingly (or even willingly) pregnant, the average citizen has no IDEA of the range of negative possibilities surrounding reproduction, including the mental health of the woman.

    For instance, years ago I knew a mentally retarded woman who’d given birth to two mentally-retarded children, both girls. When the oldest child became 14, the mother voluntarily surrendered them to care by the State since she was unable to care for them herself. The 14 year old was grossly overweight, and before the year was out, she was impregnated by somebody in the facility where she was staying. As a result, nobody including her knew she was pregnant until she was 8 months gone and it became obvious.

    There were many problems associated with this scenario. The fetus was hydrocephalic, the 14 year-old was scared to the point of hysteria, and she was certainly not equipped emotionally or mentally to care for a child who would likely be born with gross mental problems, too, if it even lived.

    So they performed a late-term abortion by caesarian section while the 14 year-old was under anesthesia. Well, we were told the fetus didn’t survive, though I had my suspicions. The 14 year-old was in a fog about what had happened, as she was about most of her life, and she had to be told several times that she wasn’t going to have a baby anymore before she returned to relative emotional health.

    The point is simple. There’s no way legislators have any kind of grasp of the reproductive realities of millions of women and girls, and I’m convinced they should not be given the authority to make the rules, to forbid what should not be forbidden under some circumstances. That responsibility belongs to those who are close to the reality of what’s happening. Apparently Obama disagrees with that.

  • Aristedes,

    You’re right that Obama’s initial remarks insisting on a “serious physical issue” could be taken to exclude the situation with the 14-year-old that you describe. I agree with you that that’s the sort of situation in which some constitutional accomodation should probably be made (maybe; 8 months is pretty far along and while I’m not an obstetrician I would think it might be possible to simply perform an immediate cesarian and probably remove a viable fetus without irreparably damaging the mental health of the mother any more than it already is)– but it’s also a pretty extreme situation. I think Obama’s subsequent clarification that “Senator Obama believes that while ‘mental distress’ should not be covered by a health exception, there will be cases where carrying to term a pregnancy may seriously damage a woman’s mental health and those cases should be covered” demonstrates that he would probably agree with you that the situation you describe should arguably be included within the scope of a constitutional right to abortion. But I think his initial comments are perfectly valid with respect to the situation to which they were directed, in which physicians attempt to circumvent the compromise struck by Roe and Casey by abusing the health of the mother exception in bad faith. If we expect the pro-life side of the abortion debate to respect the rights recognized in those cases, then it’s only fair that the pro-choice side respect the limits placed on that right as well.

    “There’s no way legislators have any kind of grasp of the reproductive realities of millions of women and girls, and I’m convinced they should not be given the authority to make the rules, to forbid what should not be forbidden under some circumstances.”

    This simply isn’t practical. The duty and authority to decide what is and is not forbidden with respect to every aspect of life falls to the government, subject only to constitutional limitations. It’s always the case that making rules of general applicability requires taking into account the individual realities of millions of people, and it’s not clear to me that the reproductive area is any more complex in that regard than many other areas in which the state has uncontested authority to regulate behavior. Legislatures are called upon all the time to regulate complex areas that require a good deal of expertise and judgment, and while they don’t always do so perfectly or even competently the method of legislative regulation is, I think, the best one we can probably hope for.

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