"Remember Judges?"

Back in the summer of 2006, then Executive Director of the Committee for Justice, Sean Rushton, asked readers of the National Review Online, “Remember Judges?”. In the piece, Rushton issued a prescient warning that if Senate Republicans did not raise the issue of judges in the 2006 election, the results could be ugly. Of course, Republicans ultimately took a big loss in November of that year. But one has to wonder if the issue of judges was used as a campaign tactic in the current election if we would see more success among the Republican candidates.

A recent analysis of campaigns shows that Senate Republicans seeking reelection generally are not using the issue of judges in their campaigns. Yes, there are some exceptions, such as Senator Lindsey Graham, who boasts on the campaign trail of his role in ushering through President Bush’s judicial nominees. But for the most part, Republicans are silent on the issue. The political landscape has indeed changed since 2002 and 2004, when the issue of judges was used heavily and successfully by Republicans. But perhaps judges in this election should be reexamined. Consider what Rushton wrote in 2006:

“The evidence of the judicial issue's power to help Republicans is well established. In 2002, GOP contenders Wayne Allard (Col.), John Cornyn (Tex.), Jim Talent (Mo.), Saxby Chambliss (Ga.), Lindsey Graham (S.C.), Elizabeth Dole (N.C.), and Norm Coleman (Minn.) all campaigned against Democratic blockage of nominees…Speaking of 2002, White House strategist Karl Rove said, “There's no doubt in my mind that we won races all throughout the country” on the issue. He told the Washington Times that, "We won the Senate race in South Carolina - judges; won the North Carolina race - judges; won the Georgia race - judges.””

Again, we are in different political times than those of 2002, 2004, or even 2006. Bringing judges back into the spotlight might be viewed by the public as a cheap move to try to focus less on the troubled economy. But with Senate polls looking gloomy for the Republicans, perhaps in a tight election reminding voters of Democrats’ stances on judges could make all the difference.

Obama & Oct. 7 Gitmo Decision

U.S. District Judge Ricardo Urbina’s order yesterday that 17 Chinese Muslims held at Guantanamo Bay be released into the United States – specifically, the Washington, DC area – against the President’s wishes, reminds us of two things:

1) The Supreme Court’s June 2008 Boumediene decision, which bestowed the right of habeas corpus on terror suspects held at Gitmo and was denounced by many critics of judicial activism, has very real consequences for Americans. Just ask those Washington, DC area residents who will soon be living down the block from men that until recently were classified as enemy combatants. We hope that these men pose no danger to the United States, but that’s not really the point. In the wake of Boumediene, unelected judges can overrule the President’s decisions concerning the conduct of the War on Terror, so it’s just a matter of time before Americans pay the price.

2) Whether Barack Obama or John McCain appoints federal judges for the next four years will have a profound impact on the War on Terror. McCain denounced the Boumediene decision, while Obama praised it. But most importantly, as we noted in our October 3 e-mail, Obama has been unabashed about his intention to appoint liberal judicial activists to the federal bench. If Obama has his way, Judge Ricardo Urbina will have plenty of like-minded company. If the result is enemy combatants living down the block, will a president who once palled around with domestic terrorists care?

Bush: “Judges Matter to Every American”

Yesterday, President Bush gave a speech in Cincinnati where he described obstructions his nominees have faced from Democrats over the course of his presidency. He used the example of Miguel Estrada to demonstrate how the Advice and Consent Clause of the Constitution has been “subjected to serious abuse.” Bush also offered a challenge to Democrats: “if [they] truly seek a more productive and cooperative relationship in Washington, then they have a perfect opportunity to prove it by giving these nominees the up-or-down vote they deserve [during the upcoming lame duck session]."

Cited in a Washington Post article is the Democrat response:

“Democrats expressed surprise that Bush would revive such allegations, arguing that the Senate has confirmed more of Bush's nominees in the past two years than were approved under the previous six years of GOP control.
The White House says 324 of 376 federal court nominees have been confirmed during Bush's tenure, with 34 current vacancies. By comparison, Democrats say, there were 84 judicial openings at the end of Bill Clinton's presidency.”

It is unclear which six years the Democrats are referring to. Presumably they mean the last six years of Republican Senate control – the 106th Congress (1999-00), 108th Congress (2003-04), and 109th Congress (2005-06)– in which case their statements are simply misleading, if at all correct. These Republican-controlled Senates had 57, 85, and 35 district court confirmations, and 15, 18, and 16 appeals court confirmations, respectively. This means that, even when generously interpreted to imply individual GOP-controlled Senates, not only were the total confirmations greater for the 106th and 108th Congresses, but they handily outstripped the 58 District Court and 10 Appeals Court judges of the Democrat-controlled 110th Congress.

Some aggregate figures deserve attention also. During Reagan a total of 383 federal judges were confirmed. Under Clinton, that dropped slightly to 377. However, during the Bush administration, only 326 federal judges have been put on the bench. Judicial openings or not, the numbers do not lie.

Will the Court Go Along With the Bailout?

“Handing off huge gobs of power to the executive branch…can raise issues of unconstitutional delegation of authority,” writes a recent law.com article. But most experts are betting that the courts will stay out of it. Roger Pilon of the Cato Institute

“says that some of the as-yet undefined details of the plan might arguably interfere with contractual or property rights. But in that area, as with its court-stripping provisions, the bailout plan is likely to survive Court scrutiny, Pilon guesses. "If the Court starts intruding on this solution, it will undermine confidence in the plan…and the Court is unlikely to want to take on that responsibility.’”

In the 1930s, the Supreme Court initially resisted Franklin Roosevelt’s federal aggrandizement of power (e.g. striking down part of the National Industrial Recovery Act in Schechter v. United States) and later ratified New Deal policy in the 1940s. It is too early to know if the Court will remain silent on the biggest bailout package – and one of the largest interference by the feds in the free market – in history.

But should a carte blanche be given to the executive this time, in light of the current situation? Ever since its initial resistance, the Court has largely rubberstamped government interventionism in the economy unabatedly for 70 years. As New York Law School professor David Schoenbrod notes, “the looseness of the Court's nondelegation doctrine, plus the gravity of the situation, would make the Court unlikely to intervene.”

However, one must wonder how the new powers vested in Paulson and the executive will play out on the Court’s docket. As we blaze through the 21st century, is a resurgence of the courts’ check on economic non-interventionism nothing more than a pipe dream?

Supremes Return; Abortion Tops Obama Court’s Agenda

Today marks the beginning of the last Supreme Court term of the George W. Bush era. The Court’s 2008-09 docket is not yet filled, but it already includes important and colorful cases involving expletives broadcast live, marine mammals annoyed by Navy sonar, the "Seven Aphorisms of Summum" vs. the Ten Commandments, and personally liability for former AG John Ashcroft. Equally important cases this term involve Title IX, the Voting Rights Act, the Pregnancy Discrimination Act, and the Clean Water Act.

For CFJ Executive Director Curt Levey’s thoughts on the new Supreme Court term, click here to see his interview on CBN News.

One result of a Barack Obama win in November would be an increased likelihood of seeing a different lineup on the Court at this time next year. The three Justices most likely to retire – Ruth Bader Ginsburg, John Paul Stevens, and David Souter – are among the Court’s liberals and may well hold out for the next four years if John McCain becomes president.

We won’t speculate about who Obama would appoint to the High Court because it’s little more than a guessing game. Somewhat easier to predict are the legal changes that would result if Obama had a chance to replace Justices Scalia or Kennedy, who will both be 80 years old if they live to see the end of an 8-year Obama presidency. With that in mind, we reprise below our popular “Top Ten Things to Expect from an Obama Supreme Court.”

We call particular attention to item #1 on the list – “requiring taxpayers to fund essentially unlimited abortion rights” – in light of Obama’s extreme views on abortion. If you doubt that characterization, recall that as an Illinois state senator in 2003, Obama led the fight to kill an Illinois bill protecting "infants who are born alive" as the result of an abortion. The Born-Alive Infants Protection bill (Illinois SB 1082) was virtually identical to a federal law of the same name that was enacted in 2002 without a dissenting vote in the House or Senate. The point is that it’s likely Obama will look for Supreme Court nominees who share his out-of-the-mainstream views on abortion.

To be fair, Obama denies that the Illinois bill was virtually identical to the federal law. But FactCheck.org found that

“Obama voted in committee against the 2003 state bill that was nearly identical to the federal act he says he would have supported. Both contained identical clauses saying that nothing in the bills could be construed to affect legal rights of an unborn fetus.”

TOP TEN THINGS TO EXPECT FROM AN OBAMA SUPREME COURT
#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 – creating new constitutional rights to massive government welfare and medical care programs
#4 – stripping "under God" from the Pledge of Allegiance
#3 – eroding property rights
#2 – ordering all 50 states to bless gay marriage
#1 – requiring taxpayers to fund essentially unlimited abortion rights
(list is based on Stuart Taylor’s 7/26/08 National Journal column)

Biden’s Pride in Ideological Litmus Tests

Call it a gaffe or a moment of unusual frankness, but at the end of last night’s VP debate, Joe Biden admitted that he is proud of applying an ideological litmus test to judicial nominees. Here’s part of the exchange with moderator Gwen Ifill:

IFILL: Can you think of a single issue, policy issue, in which you were forced to change a long-held view in order to accommodate changed circumstances?

BIDEN: Yes, I can. When I got to the United States Senate and went on the Judiciary Committee as a young lawyer, I was of the view … that the only thing that mattered was whether or not a nominee appointed, suggested by the president had a judicial temperament, had not committed a crime of moral turpitude, and was – had been a good student. … [I]t took about five years for me to realize that the ideology of that judge makes a big difference. That's why I led the fight against Judge Bork.

It’s nice to know that Sen. Biden started his Senate career without a politicized view of the Senate’s role in the selection of judges. But the pride he expressed last night in the use of ideological litmus tests should come as no surprise given that

1) As Chairman of the Senate Judiciary Committee during the hearings for Supreme Court nominee Robert Bork, Biden pioneered the use of ideology – not to mention the use of the politics of personal destruction – as a basis for opposing nominees.

2) Biden’s boss has also been surprisingly open about his view of judges as political actors rather than impartial enforcers of the law. Of course, Barack Obama – lacking Biden’s foot-in-mouth disease – phrased it in more euphemistic terms:

"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. And that's the criteria by which I'm going to be selecting my judges."

Sounds lovely, but it’s just code for “judges who will favor the outcomes preferred by liberals.” If you doubt that, ask yourself whether President Obama would select a nominee with empathy for unborn babies or for poor white kids denied college admission because of affirmative action policies.

3) Sen. Biden’s party has become increasingly blatant about its preference for ideological litmus tests. Shortly after Sen. Jim Jeffords’s defection put Democrats in control of the Senate, the Judiciary Committee held hearings entitled “Judicial Nominations 2001: Should Ideology Matter?” Democrats answered in the affirmative. Even the liberal Salon.com described the hearings as intended to “make sure that [the coming rough road for judicial nominees] was clear to the administration – and perhaps to create some political cover for when the time comes to oppose would-be judges.”

Finally, we were struck by the strangeness – bordering on inappropriateness – of Sen. Biden’s approach to Ifill’s question. Consider that Biden’s chosen example of his intellectual growth and flexibility involved learning to be more ideological and partisan and to engage in the politics of personal destruction. We doubt that’s what Gwen Ifill had in mind.

The Supreme Court and International Law

Noah Feldman, a Harvard law professor and an adjunct senior fellow at the Council on Foreign Relations, has an interesting piece in last Sunday’s New York Times Magazine that analyzes the relationship between the U.S. Supreme Court and international law. Feldman argues that there are two lenses through which one can view this relationship. The first views the Constitution as facing inward, “toward the Americans who made it, toward their rights and their security.” This view is accepted by Supreme Court Chief Justice Roberts and Justices Scalia, Thomas, and Alito. The other views the Constitution as facing outward, in a paradigm in which “rights similar to those [the Constitution] confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.” This view is accepted by Justices Stevens, Souter, Ginsburg, and Breyer.

Feldman states that each of these views of the Constitution in international law has recently enjoyed a victory. The liberals, with the aid of Justice Kennedy and an outward-looking Constitution, prevailed in the much-publicized Boumediene v. Bush, a decision that granted detainees at Guantanamo Bay the ability to challenge, in U.S. courts, their detention. Conservatives, with the aid of Justice Kennedy and an inward-looking Constitution, scored a recent victory in Medellin v. Texas. In Medellin, the International Court of Justice declared Jose Medellin’s murder conviction to be in violation of the Vienna Convention on Consular Relations, a treaty which guaranteed a right of foreign citizens to speak to the embassies of their respective countries while detained. The Supreme Court, however, held that Medellin, under the rules of postconviction judicial review, could not ask the courts to consider legal arguments that were not first raised at trial. The Court also ruled broadly that treaties obligating the United States to follow rulings by the International Court were not binding law, unless Congress passed a separate statute explicitly making the rulings binding. Feldman writes:

“The key vote in both cases was that of Kennedy. In both cases, he acted to uphold the prerogatives of the Supreme Court – against the president and Congress in the Guantanamo case, and against the international court in the Medellin decision. And Kennedy does argue that such judicial supremacy is crucial to the rule of law. But the other justices did not see the cases in those terms. To them, the cases were not primarily about the perennial issue of the division of powers between the different branches of government. To these eight justices, the cases were about what sort of Constitution we have: either outward-facing or inward-looking.”

Feldman's article raises an interesting question: Do we have a Constitution that is “outward-facing” and confers rights on all world citizens, or is our Constitution “inward-facing” and centered only on the rights of Americans?

NYT: American Legal Influence is Waning

A recent article in the New York Times claims that American “legal influence is waning” in foreign courts around the world. The author examines how many legal experts seem to think that the unpopularity of American foreign policy, reluctance to utilize foreign court decisions, and an emergence of legal precedents in newly-formed democracies have all contributed to this decline.

One of the most interesting reasons cited also seems to be the activist culture of many foreign courts. Charles Fried, a law professor and former Reagan solicitor general, states: ‘“What we have had in the last 20 or 30 years…is an enormous coup d’état on the part of judiciaries everywhere — the European Court of Human Rights, Canada, South Africa, Israel.” In terms of judicial activism, he said, “they’ve lapped us.”’

Declining influence seems like a cheap price to pay for centrist courts.

Senate Confirms 10 District Judges

On Friday, the Senate confirmed ten judges to federal district courts across the United States. Senate Judiciary Chairman Patrick Leahy touts in a press release that he “expedited the consideration of the nominees.”

Also on Friday, The White House announced the nomination of Philip P. Simon to replace retiring Judge Kenneth F. Ripple on the Seventh Circuit Court of Appeals. Since Chairman Leahy is now such a strong believer in expediting the confirmation of the President’s nominees, perhaps we will see Judge Simon confirmed in a lame duck session. While he is at it, the Chairman could break even more records by expediting the consideration of the rest of President Bush’s appellate court nominees. That would be quite impressive, Mr. Chairman.

Obama & McCain on Equal Pay

Today’s Senate Judiciary Committee hearing on “Equal Pay for Equal Work" is the latest example of Democrats’ attempts to make a campaign issue out of alleged pay discrimination against women. Democrats are clearly worried about the women’s vote in the wake of Hillary Clinton’s defeat and Sarah Palin’s emergence. No Democrat has tried harder to exploit the pay issue than Barack Obama, whose surrogates and ads have repeatedly alleged that John McCain opposes equal pay for women. For example, a recent Obama TV ad claims that McCain “opposed a law to guarantee women equal pay for equal work” (link to ad below).

These claims stretch the truth beyond recognition, so let’s look at the facts. As a result of the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act, pay discrimination against women has been unlawful for more than forty years. Obama’s claims are always left vague enough to give the impression that McCain opposes such laws. In reality, John McCain was not in Congress when these statutes were enacted and, needless to say, has never expressed disapproval of them.

What the Obama campaign is alluding to and distorting are Sen. McCain’s reservations about a bill that would overrule the Supreme Court’s take on a technical statute of limitations issue. The bill, the Lilly Ledbetter Fair Pay Act, is named after the star witness at today’s hearing and the plaintiff in the Supreme Court case at issue, Ledbetter v. Goodyear. The Court rejected Lilly Ledbetter’s claim that Title VII’s statute of limitations is reset with each paycheck, declining to establish a special rule for pay discrimination cases. Whatever one thinks of the technical issue in the Ledbetter case, it requires an unbelievable stretch to equate opposition to overruling the decision with opposition to equal pay for women.

In its attempt to win over Hillary supporters, the Obama campaign has also attacked John McCain’s vote against the 1994 Violence Against Women Act (VAWA), sponsored by Sen. Joe Biden. These attacks conveniently ignore the important fact that a central provision of the statute – opening the federal courts to civil rights claims by female victims of violence – was struck down as unconstitutional by the Supreme Court in United States v. Morrison. The Supreme Court had to step in because too few members of Congress had the courage to put the Constitution above the political appeal of VAWA.

Aron & Levey Debate Election ’08 Stakes

Tomorrow (Sept. 17) is Constitution Day, a federal holiday marking the signing of the U.S. Constitution in Philadelphia in 1787. American University’s Washington College of Law will mark the holiday with a late afternoon debate (details below) between CFJ Executive Director Curt Levey and Alliance for Justice President Nan Aron entitled “The 2008 Election and the Future of the Federal Courts.” Aron is the leading voice on the liberal side of the battle over judicial nominations and includes among her accomplishments “helping to defeat Robert Bork's nomination to the Supreme Court in 1987” and “organizing the effort that helped support ten Senate filibusters against President George W. Bush's most extreme judicial nominees.”

As Jeffrey Toobin wrote in a recent New Yorker, “The stakes in [this] election, for the Supreme Court and all who live by its rulings, are very, very high.” Given the stakes and CFJ’s contributions to the other side of the battle – including our important role in breaking the back of the judicial filibuster and preventing the Borking of Supreme Court nominees John Roberts and Samuel Alito – we look forward to a very spirited debate.


THE 2008 ELECTION AND THE FUTURE OF THE FEDERAL COURTS
September 17, 2008
3:45pm– 6:00 pm, Reception to Follow
American University Washington College of Law (WCL), Room 603
4801 Massachusetts Avenue, NW
Washington, DC 20016

Welcome and Introduction:
Lynda Dodd, Professor, WCL

Speakers:
Nan Aron, President, Alliance for Justice
Curt Levey, Executive Director, Committee for Justice

Response:
Herman Schwartz, Professor, WCL
Jamin Raskin, Professor, WCL
Jennifer Segal Diascro, Professor, School of Public Affairs, American University

For further information, please contact:
Office of Special Events & Continuing Legal Education, Phone: 202.274.4075; Fax: 202.274.4079; or secle@wcl.american.edu

Whither Roe?; Whoopi on Constitutionalism

For someone who frets that the fate of Roe v. Wade is "hanging in the balance" in the 2008 election, liberal law professor and potential Obama Supreme Court pick Cass Sunstein was unusually candid in his Boston Globe op-ed yesterday:

"Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents. Moreover, it ruled far too broadly. … It is no wonder that millions of Americans felt, and continue to feel, that the court refused to treat their moral convictions with respect."

But, predictably, Sunstein goes on to conclude that "Roe v. Wade has been established law for 35 years; the right to choose is now a part of our culture. A decision to overrule it would … disrupt and polarize the nation."

As Radford University Professor Matthew Franck notes in response, Sunstein’s argument is a classic example of the "ratchet racket," the seeming belief of liberal jurists and scholars that, while precedent can be ignored when moving constitutional law to the left, the resulting new precedent is inviolable. Franck also reminds us that the landmark, segregation-busting Brown v. Board decision overturned a 58 year old precedent.

In his September 13 National Journal column, Stuart Taylor reaches a very different conclusion than Sunstein regarding the precariousness of Roe v. Wade. Taylor, who "lean[s] to the abortion-rights side of the policy debate," believes that "McCain could get Roe overturned only if an improbable chain of events were to unfold."

We agree with Taylor that "it is unclear whether Roberts and Alito, although undoubtedly conservative, will ever join the campaign by Justices Antonin Scalia and Clarence Thomas to overrule Roe." A narrowing of the decision is far more likely. Professor Sunstein can rest assured that, unlike the justices that gave us Roe v. Wade, Roberts and Alito will continue to take a modest approach to tinkering with the current state of the law.

Given the common misconception that Roe is all that stands between American women and the Dark Ages of "back-alley" abortions, Taylor’s most important point may well be that

"Even if the Court were to overrule Roe, that would not make abortion illegal. It would merely give states the option of banning or severely restricting abortion. Most would not do so. And women in anti-abortion states would remain free to get abortions elsewhere."

As CFJ Executive Director Curt Levey explained in a November 2006 op-ed, Taylor’s point is strongly supported by the fate of several ballot initiatives that fall. Noting that "[a]bortion restrictions were defeated in South Dakota, Oregon, and California, and voters approved a stem-cell-research measure in Missouri," Levey concluded that

"The election results in these four states give us a good indication of what abortion law may look like after Roe’s demise. … In blue states, the legal regime will be virtually unchanged from the heyday of Roe. In moderately red states, compromises between pro-life and pro-choice voters will develop. And, in a handful of very red states, substantial restrictions on abortion will be softened by a number of exceptions."

WHOOPI GOLDBERG

It’s a bit of an intellectual leap from Sunstein, Taylor and Franck to Whoopi Goldberg, but that didn’t stop her from weighing in on constitutional interpretation during John McCain’s appearance on The View on Friday. A discussion of McCain’s views on Roe v. Wade led to the following exchange:

Goldberg: Did you say you wanted strict constitutionalists because that … (interrupted)

McCain: No, I want people who interpret the Constitution of the United States the way our founding fathers envisioned for them to do.

Goldberg: Should I be worried about being a slave, about being returned to slavery because certain things happened in the Constitution that you had to change?

Whoopi’s remarks might be humorous were it not for the fact that they are an instance – albeit an extreme one – of another common misconception, namely that progress under the law for the oppressed has come through the "living Constitution" – that is, judicial activism.

What rescued this nation from the ages of slavery and Jim Crow is not a judiciary that imposed its values and social theories on the law. Instead, democratically-enacted constitutional amendments and legislation – and the court decisions that have faithfully enforced them – are responsible for all of the landmark civil rights gains for minorities, women, and the disabled in American history. Judicial activism’s most notable "contribution" to civil rights law was the notorious Dred Scott decision, which discovered a constitutional right to own slaves and should forever serve as an awful reminder of the dangers of allowing judges to creatively interpret the Constitution.

Palin’s Impact on Judicial Picks

An article in the Legal Times discusses the impact that Sarah Palin and Joe Biden would have on judicial picks if elected vice president. For those who question the potential influence of a VP on judicial selection, the Legal Times notes that “Gore was a strong voice … in pushing the nominations of Justices Ruth Bader Ginsburg and Stephen Breyer.” The article concludes that

“Palin … is thought to be an assurance that Sen. John McCain will make good on his promise to nominate more judges in the mold of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.”

We agree:

“McCain’s choice of Palin, a social conservative, shut down criticism from [CFJ’s Curt] Levey and others. ‘McCain is a moderate, and she’s more of a movement conservative,’ Levey says. ‘If she has any effect on his judicial picks, I think it’ll be a positive one.’”

The article notes that, while Palin has less of a record than Biden on judicial selection – as Judiciary chairman, he led the fight to defeat Robert Bork and Clarence Thomas – Palin

“already has had more impact on the Alaska judiciary than her predecessor. Since taking office in December 2006, Palin has seated more than a dozen judges, including a state Supreme Court justice and a state court of appeals judge, the first appellate appointments in the state in more than a decade.”

Palin’s questions when interviewing potential nominees for the Alaska bench give assurance that she understands two of the most important principles of judicial selection: 1) select nominees who believe in judicial modesty and restraint, and 2) impose no litmus tests (both principles can be found in the judges section of the GOP’s 2008 platform). The Legal Times reports that

“[Andy] Harrington, executive director of Alaska Legal Services Corp., interviewed with Palin in November 2007, days after the state Supreme Court issued a ruling striking down a law that required girls less than 17 years old and younger to get permission from their parents before receiving an abortion. … Harrington anticipated a question about the ruling. But Palin never asked about the case or any other, Harrington says. … At one point, she asked him to define an activist judge. … Another judicial candidate who interviewed with Palin this year says Palin asked questions about work history, background, and basic judicial philosophy. ‘Some of my colleagues say the Constitution is a living, breathing document. What do you think?’ Palin asked.”

RASMUSSEN SURVEY
Of course, some liberal judges and commentators claim that it is they who believe in judicial restraint. And perhaps a few of them do. But for those who doubt which side of the political spectrum most consistently supports the rule of law, the results of a Rasmussen survey this month should dispel those doubts. The survey found that McCain supporters overwhelming believe – by an 82% to 11% margin – that “the Supreme Court [should] make decisions based on what's written in the Constitution and legal precedents,” rather than “be guided mostly by a sense of fairness and justice.” Obama supporters, on the other hand, believe the converse by a 49% to 29% margin.

Finally, see here for a bio on U.S. District Judge Loretta Preska of New York, who was nominated yesterday to the Second Circuit.

Judges Battle Resumes; Justice Ginsburg Clone

With the political conventions over and Congress back today for its last few weeks of pre-election business, the final push for the confirmation of the President’s judicial nominees is on. We’ll look at the fight ahead, but first, here’s a few words about the elephant in the room, namely the two or more Supreme Court vacancies likely to occur under President McCain or Obama.

In an article about “a fascinating new documentary film” chronicling the Supreme Court confirmations battles of 2005-06,” MSNBC reports that “Advise and Dissent” will be released “as soon as the next vacancy opens on the court.” The film was screened in Minneapolis during the Republican Convention. MSNBC asked CFJ’s Curt Levey, one of the panelists in the discussion that followed the screening, whether a Republican minority in the Senate would fail to stop an objectionable Obama Supreme Court nominee “just as surely as Democrats did in trying to stop Alito and Roberts”:

“It very much matters who Obama nominates," said Curt Levey … If Obama sends up someone like liberal Justice Ruth Bader Ginsburg, then “I think she could be stopped fairly easily because she has such radical views. … If you had the proper resources to expose her record I think red-state Democrats would go running.” “As long as we have more than 40 Republicans plus red-state Democrats, I think extreme nominees can be stopped,” he added.

More immediately, the battle over the direction of the federal courts centers on the three dozen judicial nominees pending in the Senate, many of whom have been actively obstructed by Senate Democrats. The 28 pending district court nominees have languished in the Senate for up to 22 months, and half of the eight pending appeals court nominees have been waiting for more than a year.

To get a sense of what’s possible and reasonable in the remaining months of the 110th Congress, consider this statistic. During the previous three president’s final months in office – specifically Sept. 1 through Jan.19 – an average of 2 appeals court and 7 district court nominees were confirmed. Most notably, if we go back even further to Jimmy Carter, we find that Supreme Court Justice Stephen Breyer was confirmed to the U.S. Court of Appeals just a month before Carter left office, despite being nominated less than a month earlier. If not for the Senate’s swift action, it is very unlikely that Breyer would be on the High Court today.

Of course, Senate Democrats will do their best to fall short of these historical averages, just as they have fallen far short of the historical average (17) for appeals court confirmations by an opposition Senate in a president’s final two years. Therefore, the number of judicial confirmations in the final months of the 110th Congress will depend largely on the efforts of the GOP leadership and Judiciary Committee Republicans to press the Democratic majority for action on nominees.

Senate Republicans should focus on the following three goals:

1) Take care of the low hanging fruit. Most importantly, make sure that the two appeals court nominees supported by a home state Democratic senator – Glen Conrad (4th Circuit) and Paul Diamond (3rd Circuit) – get confirmed.

2) Use all possible leverage to press for action on the three additional appeals court nominees without home state opposition: Peter Keisler (DC Circuit), Bob Conrad (4th Circuit), and Steve Matthews (4th Circuit). Remind Judiciary Chairman Leahy of his repeated statements that the support of home state senators is the key to getting through his Committee. And remember that, with four vacancies and a 6-5 GOP-Democrat split, the soul of the all-important Fourth Circuit hangs in the balance.

3) Aim to meet or exceed the historical average of seven district court confirmations in a president’s final three months. Given the large number of pending district court nominees – most of whom are uncontroversial – this goal is well within reach.

Senate Republicans have every reason to make these goals a high priority. Ever since Democratic obstruction of President Bush’s judicial nominees became an issue in 2002, the judges issue has been
a central element of GOP victories in key Senate races, including John Thune’s victory over Tom Daschle. “There’s no doubt in my mind that we won races all throughout the country [on the judges issue],” says Karl Rove.

Conversely, Senate Democrats remember the Daschle defeat and don’t want their unprecedented obstruction of judicial nominees – including their hostility to nominees with traditional values – to be a campaign issue. As a result, Republicans will have increased leverage on judges during the Senate session that began today.

SCOTUS Documentary Screening

First off, congratulations to Sarah Palin / John McCain and Barack Obama for making history this week. Regardless of political ideology or who wins the election, we should all be proud that the presidency and vice presidency are open to all Americans. Of course, that’s where the agreement ends. And nowhere is the disagreement sharper than over what sort of men and women the next President should appoint to fill the Supreme Court vacancies that will almost surely occur during the new administration.

With that issue front and center in this election, it’s a good time to look back at the Supreme Court confirmations battles of 2005-06. Now there’s a feature documentary that does just that. If you’ll be in Minneapolis next Tuesday, please join us for a screening of this soon-to-be-released film, “Advise & Dissent” by director David Van Taylor (“With God on Our Side” and “A Perfect Candidate”). The screening will be followed by a panel discussion of legal experts, including CFJ’s Curt Levey. See below for details.


ADVISE & DISSENT SCREENING AND PANEL DISCUSSION

Tuesday, September 2, 1:00 pm - 3:30 pm (lunch at 12:30 pm)
Schulze Hall Auditorium, University of St. Thomas - Minneapolis Campus
1000 LaSalle Avenue
Minneapolis, MN 55403

You are invited you to a screening of “Advise & Dissent,” a feature documentary about the recent Supreme Court confirmation battles, followed by a panel discussion of legal experts. Space is limited so please RSVP to ltcorrenti@cox.net or call Mark at 817-658-1085 to guarantee access.

Lunch will be served in the Schulze Hall Atrium at 12:30 pm.

Guest Panel Includes:
Melanie Kirkpatrick, Editor, Wall Street Journal
Curt Levey, Executive Director, Committee for Justice
Chuck Donovan, Executive VP, Family Research Council
Maggie Gallagher, Syndicated Columnist
Teresa Stanton Collett, Professor of Law, University of St. Thomas Law School

Sponsored by the Catholic Working Group and the University of St. Thomas School of Law College Republicans.

Advise & Dissent is a feature documentary about the recent Supreme Court confirmation battles. The film pulls back the curtain on the Roberts, Miers, and Alito nominations. Director David Van Taylor (“With God on Our Side,” “A Perfect Candidate”) sheds new light on the ongoing collision of justice and politics. Preview audiences have called it “riveting” and “gripping.” Viewers have recognized the crucial relevance of this recent history to the present moment. As Jeffrey Toobin wrote in a recent New Yorker: “The stakes in [this] election, for the Supreme Court and all who live by its rulings, are very, very high.”

VP Lieberman & DNC Silence on Judges

Amid press reports of John McCain notifying his running mate and Joe Lieberman rebuffing a request by Karl Rove to withdraw his name from VP consideration, RealClearPolitics concludes that “a lot of Republicans are nervous” that Lieberman is McCain’s pick. Republicans are concerned about Lieberman’s pro-choice stance and his weak record on judges. Since the abortion issue is almost entirely in the hands of the courts, Sen. Lieberman, if selected, could likely deflect much of the inevitable conservative criticism by making the following three pledges regarding judicial appointments:

1) he will play no role in picking judicial nominees in a McCain Administration,

2) he will not run for president in the future (and thus will never nominate judges himself),

and most interestingly,

3) he will caucus with Senate Republicans for the remainder of the year, allowing Republicans to demand a Senate reorganization like the one that followed Sen. Jeffords’ 2001 defection from the GOP. That would make Arlen Specter chairman of the Judiciary Committee and Mitch McConnell Majority Leader, likely resulting in the confirmation of four pending appeals court nominees to the all-important Fourth and D.C. Circuits. Senate Democrats would be unwilling to risk the fate of Tom Daschle by filibustering nominees so close to an election.

We’re not betting any money on Lieberman being selected and making pledges, but the possibility of a Senate reorganization is too enticing to ignore.

Meanwhile, we’ve been watching the Democratic Convention closely for indications of whether the Obama campaign will use the prospect of several Supreme Court vacancies, and the judges issue in general, to scare Hillary Clinton’s pro-choice supporters into the Obama camp. Based on the convention’s four major speeches so far – those of Biden, Warner, and Bill and Hillary Clinton – it looks like the campaign will try to avoid the issue, at least in front of mainstream audiences. Out of more than 8300 words in the four speeches, only seven words were devoted to the judges issue:

“Jobs lost, houses gone, falling wages, rising prices. The Supreme Court in a right-wing headlock and our government in partisan gridlock. … ” — Hillary Clinton, Aug. 26, 2008

The logical conclusion is that the Obama campaign, keenly aware that the judges issue has been a losing one for Democrats in recent presidential and Senate elections, has concluded that the issue’s risks outweigh its appeal to some Hillary supporters. Especially in light of Obama’s past pronouncements about the type of judges he would appoint, he’s got good reason to be concerned about alienating swing voters who – regardless of what they think about Roe v. Wade – worry about courts mandating gay marriage, nullifying the death penalty, treating religion as a communicable disease, and striking down protection against online pornography.

The silence on the judges issue was particularly notable in Sen. Biden’s speech last night, given that he is a member and former chairman of the Senate Judiciary Committee. If anyone has the credibility to promise he’ll fight tooth and nail for a pro-choice Supreme Court, it’s Biden, who led the fight to defeat Robert Bork and Clarence Thomas as Judiciary chairman. But last night, Biden may well have been loathe to remind the mainstream audience watching at home of his track record on judges. After all, Biden has done more than any other senator to transform the judicial confirmation process into the political circus it is today. Bloggers Paul Mirengoff and Donald Kochan aptly describe Biden’s leading role:

“As Chairman and member of the Senate Judiciary Committee, Senator Joseph Biden set the precedent for intensely political, antagonistic, and activistic opposition to judicial nominations regarding originalist, strict interpretivist, or conservative judges. This was accomplished not only in hearings – most notably for Robert Bork and Clarence Thomas – but also in ensuring many lower court nominations never received a floor vote.” — Donald Kochan

“Biden’s legacy, then, is a fully politicized system of confirming federal judges – one that will continue to produce ugly spectacles like the Bork and Thomas hearings [and] undermine respect for the judiciary.” — Paul Mirengoff

Finally, let’s examine Hillary Clinton’s assertion Tuesday night that the Supreme Court is “in a right-wing headlock.” As we said back in June,

“If a Court that grants habeas corpus rights to enemy combatants for the first time in history, and places more importance on elite opinion [about the death penalty] than the considered judgment of Louisianans about how to best protect their children, is too conservative, then what precisely do you hope a more liberal Supreme Court … would do?”

Kathryn Lopez made a similar point yesterday over at National Review Online . And as Stuart Taylor noted last month, after analyzing poll results,

“[C]onsider six of the most contentious subjects that come before the justices on a recurring basis: abortion; race; religion; the death penalty; gay rights; and presidential war powers. On every one of them, the Court’s precedents are to the left of, or very close to, the center.”

ABA: Let Us Pick the Judges

Today’s Wall Street Journal criticizes an American Bar Association resolution, adopted earlier this week, which calls for the use of "bipartisan commissions of lawyers and other leaders, reflecting the diversity of the profession and the community" to recommend nominees to the federal courts. The resolution’s objective is "a less contentious judicial selection process," a goal we wholeheartedly support. However, even if one puts aside the quota-like "diversity" requirement, there is good reason to doubt that the recommendations of these commissions would be "bipartisan." As the Journal points out,

“[M]erit selection merely takes the partisan politics out of the public eye and into backrooms stocked with political insiders. In states that have adopted the ostensibly nonpartisan [commission] system, it has given disproportionate influence to the state trial bars that control selection commissions and have steadily marched state courts to the left. ... [I]t's no accident that outfits like the George Soros-bankrolled Justice at Stake have lobbied for precisely this kind of ‘merit’ selection.”

Exhibit number one is Missouri, which pioneered the commission system in 1940. As CFJ Executive Director Curt Levey described in a Human Events op-ed last year,

“Missouri governors must appoint a judge chosen from a panel of three candidates submitted by the state’s Appellate Judicial Commission. ... [O]ver the years, the Commission’s secretive selection process has become increasingly controlled by the Missouri Bar Association, an organization with close ties to liberal special interest groups. As a result, the three finalists chosen by the Commission to replace retiring Justice White have [activist] records. ... Faced with choosing from among three unacceptable candidates, Republican Governor Matt Blunt criticized the Commission’s highly politicized, backroom selection process."

“All of which explains why states that use some version of merit selection are trying either to reform the system or ditch it altogether,” the Journal notes. It also explains why the ABA's House of Delegates overwhelmingly voted for the resolution recommending that the system be used at the federal level. Just as the state system gives disproportionate influence to state bars, the ABA’s federal proposal would give disproportionate influence to the ABA. That’s reason enough to question the ABA’s proposal. But the Journal points out that, in addition,

“The ABA's own judicial review panel, which rates Presidential nominees, has already proven it can't be trusted. Loaded with liberals who [hide] behind the bar's professional sheen ... [y]ou can be certain that the next Antonin Scalia would be deemed too controversial, while David Souter would qualify as the ultimate ‘consensus’ choice.”

Ed Whelan and John Lott have done a superb job of documenting and quantifying the ideological bias of the ABA's judicial review panel.

The Journal concludes that

“A better option is to keep the judicial nominating process democratically accountable and transparent. Those who don't like the judges a President appoints can take their preferences out at the ballot box.”

We agree. Like many aspects of democracy, the current, constitutionally-envisioned method of selecting federal judges has its flaws – including the growing contentiousness of the process – but is better than the alternatives.

Instead of changing the current system, some have suggested reducing its contentiousness by adopting bipartisan standards of timeliness and fairness that would prevent the indefinite obstruction of judicial nominees. The President suggested such standards in 2002, but Senate Democrats balked. Sen. Arlen Specter introduced a similar proposal in 2004 (see S. Res. 327) and again in this Congress. We’re inclined to support such standards as long as they’re flexible enough to be waived by a super-majority of the Senate or Judiciary Committee, and as long as enforcement could be ensured regardless of which party controls the White House and Senate.

Finally, Lawrence Hurley reports on the Obama campaign’s response to the ABA resolution:

“Senior Barack Obama advisor and former Senate Majority Leader Tom Daschle said [Wednesday] the presumptive Democratic nominee would ‘consider a lot of options’ for addressing the partisan nature of judicial nominations in recent years if he is elected president. Daschle, who famously lost his South Dakota seat in 2004 in part due to his role in obstructing President Bush’s judicial nominees, stressed that the problems that have arisen during the current administration has been caused largely by the lack of ‘good communication and consultation’ on the part of the White House.”

Voters didn’t buy that explanation in 2004 and we doubt they’re buying it now.

8 Reasons to Fear Judicial Activism

Judicial activism is the subject of the cover story in this month’s Townhall Magazine. The article, by Committee for Justice Executive Director Curt Levey, attempts to cut through efforts to “blur and distort the definition of judicial activism” by clarifying, in layman’s terms, what judicial activism is and what it is not. Levey notes that

“[T]he purveyors of judicial activism – and its handmaiden, the ‘living Constitution’ – try hard to blur the distinction between activist and legitimate court decisions. So it’s important to clarify that true judicial activism is marked by the elevation of a judge’s policy preferences above objective interpretation of the law, such that the resulting decision is not plausibly grounded in the common sense meaning or original intent of the constitutional or statutory text at issue.”

The article lays out the common forms of judicial activism – construing black as white, twisting legal doctrines beyond recognition, inventing new rights, ignoring old rights, and playing policymaker – while providing examples of each. It then tackles popular but misguided definitions of judicial activism, explaining that a court’s decision is not necessarily activist because it 1) overturns actions by the other branches of government, 2) doesn’t follow precedent, 3) arguably should have gone the other way, or 4) angers conservatives. “Conservatives have every reason to be angry about judicial activism,” Levey notes, “but they handicap the battle against it when they overuse the term.”

Of course, conservative judges are sometimes guilty of activism themselves. But for the most part

“[C]onservative judges can’t compete when it comes to judicial activism, because they’re not even trying. Sure, their biases sometimes cloud the objective interpretation they shoot for. But many liberal jurists don’t even shoot for objectivity. Instead, they are proud of belonging to the school of judging exemplified by Barack Obama’s yearning for a judge who will ‘bring in his or her own perspectives, his ethics, his or her moral bearings.’”

Because judicial activism is such a jurisprudential disgrace, it’s easy to overlook the specific reasons why it is dangerous. Accordingly, the article reminds us of eight such reasons:

1) “Because judicial activism lacks any standards, it cedes unchecked power to judges.”

2) Judicial activism is intentionally anti-democratic. “The progressives who fuel judicial activism from inside and outside the judiciary are committed to using the courts to achieve political agendas that are too far out of the mainstream to be enacted through democratic means.”

3) Judicial activism “is part of a concerted effort to impose the values of the intellectual elite on the average American. “

4) Judicial activism compromises American sovereignty by encouraging reliance on international law. “After all, when you’re discovering new rights, you may not be able to find any support in the myriad of domestic sources of law.”

5) The Framers “provided us with a democratic method of constitutional evolution, namely the amendment process.” But the amendment process has withered “[b]ecause of the availability of an easy alternative – judicial activism.”

6) As Roe v. Wade exemplifies, judicial activism “[d]istorts the political process and prevents compromise.”

7) The circus that judicial confirmations have become is “the inevitable result of judicial activism, which sanctions the politicization of judging, while also raising the stakes in selecting judges who will wield nearly unlimited power.”

8) The living Constitution’s “greatest evil [is] the harm done to U.S. citizens when the Constitution and laws that protect us are pushed aside with the stroke of an activist judge’s pen.”

Given the danger posed by judicial activism, it is no wonder that

“The American people … are acutely aware of the problem. … [A] 2005 survey by the American Bar Association revealed that Americans, by an almost two-to-one margin, agree that judicial activism ‘seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality.’”

Dems’ Biggest Embarrassment

With the Senate now gone for its August vacation and only a month-long session remaining before the election, it’s time to start assessing the Democratic majority’s performance on judicial nominations in this 110th Congress. The highest marks to go to Sen. Diane Feinstein, who incurred the wrath of liberal civil rights groups when her vote in the Judiciary Committee allowed 5th Circuit nominee Leslie Southwick to reach the Senate floor and be confirmed. It’s hard to pick a single low point, but the following events are certainly in the running:

** A complete shutdown of the judicial confirmation process unmatched since 1848
** Sen. Leahy’s invention of a rule requiring obstruction of nominees, all the while blaming it on a senator – Strom Thurmond – who is no longer alive to defend himself
** The attempted personal destruction of Iraq War veteran Leslie Southwick based on judicial opinions he didn’t write
** Broken promises made by Sens. Reid and Leahy to their GOP counterparts

In other words, there’s plenty for Sens. Reid and Leahy and other Democrats to be embarrassed about. But we suspect that when people look back on the issue of judicial nominations in the 110th Congress, the biggest embarrassment for Democrats – particularly Judiciary Chairman Leahy – will be the treatment of D.C. Circuit nominee Peter Keisler. Keisler has been praised for transcending politics while serving as an Assistant Attorney General and his confirmation is supported by the Washington Post, the Los Angeles Times, and leading legal scholars and practitioners. Even Senate Democrats and their staff privately express admiration for Keisler. Yet, by keeping him waiting two years and counting for a Judiciary Committee vote following a flawless August ’06 committee hearing, Senate Democrats have proved incapable of transcending politics and the demands of the Left.

Sen. Arlen Specter, Ranking Member of the Judiciary Committee, sums it up well in a Washington Times op-ed on Thursday, which focuses on Keisler’s role in combating the politicization of the Justice Department that Senate Democrats have spent the last two years denouncing:

“This week, the Senate Judiciary Committee held a hearing to examine reports by the Justice Department’s Inspector General (IG) on ‘politicization’ at the department. … [Peter Keisler] was repeatedly cited in the IG's June report as having spoken and acted in opposition to those who allowed political considerations to play a role in [DOJ] hiring decisions. … Ironically, Mr. Keisler … has been unable to get a Senate vote on his confirmation because the Judiciary Committee has elevated political considerations over the nominee’s qualifications.”

Specter goes on to note the IG’s observation that Keisler even made "a personal appeal … on behalf of [a DOJ] candidate who worked for Planned Parenthood,” and concludes that

“Those decrying ‘politicization’ in the Justice Department should, with equal fervor, support Senate consideration of highly qualified judicial nominees who have demonstrated a commitment, even when no one was looking, to political impartiality and the rule of law. … In a politically charged atmosphere, Mr. Keisler did the right thing. I hope the Senate Judiciary Committee will do the same.”

We know it’s tempting for Democrats to block a nominee like Keisler whose stellar credentials make him Supreme Court material. And we are certainly aware that groups on the Left, like People for the American Way, have threatened that there’ll be hell to pay if Keisler is confirmed. But Peter Keisler showed a lot of courage when he stood up against politicization of the Justice Department. So Democrats, how about showing a little courage yourselves? Besides, what will you say in the next Congress when people ask why this exceptional nominee, with support from across the ideological spectrum, was obstructed?

But if shame isn’t enough to motivate you, consider practical politics. As you look forward to the possibility of confirming Barack Obama’s judicial nominees next year, while realizing that a filibuster-proof Democratic majority in the Senate is highly unlikely, wouldn’t it make sense to end the 110th Congress with a touch of class and courage you can later point to?

Obama Court is Conservative Nightmare

“Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.”

So begins the cover story in this week’s National Journal, which analyzes what an Obama and McCain Supreme Court would look like. We focus here on the article’s observation that Barack Obama “exudes determination to move the [Supreme] Court sharply to the left.” That warning has been heard before, but the stature and nonpartisan reputation of the article’s author, former New York Times Supreme Court reporter Stuart Taylor, gives the warning added credibility. Taylor – who called the Bush Administration’s handling of enemy combatants “a global scandal” and accused the High Court’s conservative bloc of "colorblind Constitution absolutism” – is no conservative.

The virtual certainty of an increased post-election Democratic majority in the Senate means that Obama is “far more likely [than McCain] to get the Senate to confirm just about anyone he chose,” says Taylor. As a result,

“The door would be open for Obama, if he were so inclined, to appoint the kind of crusading liberal that the Court has not seen since Justices William Brennan and Thurgood Marshall retired in 1990 and 1991 – or, for that matter, to appoint Hillary Rodham Clinton if she wanted the job.”

Taylor notes that Obama might “disappoint” some of his most fervent supporters by appointing a “moderate-liberal consensus-builder” to the Court. But that possibility rings hollow when Taylor reminds us that Obama cited former Chief Justice Earl Warren, the father of liberal judicial activism, “as a model for the kind of justice he would pick.” If we take Obama at his word, a likely pick would be Second Circuit Judge Sonia Sotomayor, who Taylor lists among “the most-talked-about prospects” for an Obama Supreme Court. A bright but ultra-liberal Hispanic woman, Sotomayor would allow Obama to check three boxes with a single pick. The mere mention of her name brings fear to in-the-know conservatives.

Were Sotomayor to replace 88-year-old liberal Justice John Paul Stevens, the Court’s shift to the left would be muted. However,

“[A] Scalia or Kennedy retirement would enable Obama to move the Court dramatically to the left, creating a solid liberal majority for the first time since Chief Justice Earl Warren retired in 1969.”

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.”

In fact, not much imagination is necessary, because Taylor lays out the possible agenda of an Obama Supreme Court. For easy reference, we have transformed Taylor’s “conservative nightmare” scenario into a Top Ten List (while retaining his wording).

Top Ten Things to Expect from an Obama Supreme Court:
#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

Of course, this “conservative nightmare” is a “liberal dream” for Obama's most enthusiastic supporters. It’s no wonder that the issue of judicial appointments looms large in this year’s race for the White House.