Implications of an Obama Victory to the Supreme Court

Posted on September 15, 2008. Filed under: B. Hussein Obama's real record as a "reformer", Obama's Grand Plan for Change, Past Policy Voting Tendencies (Or Lack of Voting) |

One issue that has not been heavily discussed in the press is the implication this election will have on the ideological composition of the United States Supreme Court. Federal judicial nominees are a very important power granted to the president under Article II, Section 2 of the Constitution. The Constitution says, “[The President] shall have Power, by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court…” Over the years the Democrats in the Senate have continued to interpret their role in advising and consenting to the appointments to grant them increasingly more power to demand certain beliefs from the nominees they approve. However, even with the Senate expanding their role, the President is the one who chooses the nominees the Senate will evaluate. At no time, has the Senate ever tried to dictate the pool out of which the President should choose the nominees. Therefore, the President is the one who is ultimately responsible for the beliefs and agenda the newly appointed justices will arrive on the Supreme Court to advance. This is an especially important issue that should be on the minds of all voters this November. Just through their party affiliations, Barack Obama and John McCain possess competing views of what is important in selecting a Supreme Court nominee. However, since Barack Obama is the most liberal senator in the US Senate, the values he will seek out in a nominee are polar opposite of those John McCain, and many Americans, will value in a judicial appointment.

Throughout history, Democrats and Republicans have had very different views on how they feel a Supreme Court Justice should interpret the Constitution. Most liberal Democrats favor justices that believe the Constitution is a living document that must constantly be reinterpreted to keep up with a changing society. This view of the Constitution is how the court decided in the Roe v. Wade opinion that abortion is a fundamental right granted to US citizens through the Due Process and Equal Protection Clauses in the Fourteenth Amendment. This interpretation often allows justices to impose their political positions on American citizens through maintaining that the Constitution must be reinterpreted to accommodate for issues brought before them. Many critics of this type of judicial reasoning often see judges bending the words of the Constitution any way they see fit in order to legislate from the bench in order to advocate a social agenda. Going back to the Roe v. Wade decision, in this case the Supreme Court was able to declare abortion constitutionally protected through the claim that denying women the ability to have an abortion is a violation of their right to privacy as protected in the Fourteenth Amendment, specifically the passage in Section 1 that reads, “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Loose interpretation of the Constitution is not only used as a method of creating rights, it is also used by the same group of justices to attempt to take away rights. The justices on the current Supreme Court who are in agreement with Roe v. Wade wrote a dissenting opinion during on the case of Heller v. The District of Columbia where they stated the Constitution provides no basis for private firearm ownership even though the Second Amendment ends with, “…the right of the people to keep and bear Arms, shall not be infringed.” Through the idea that the Constitution can be reinterpreted at any point in time to accommodate almost any government agenda is a very dangerous scenario because it allows a court to arbitrarily create and take away any right they wish without needing any approval of the people.

Republican presidents have strived to appoint originalist judges. Judges that fall into this category hold that the framers of the Constitution had specific ideas in mind when writing the Constitution. Even though times change, the Constitution was based on fundamental ideas that remain constant over time and provide the guiding principles by which to base new laws and regulations. Subscribers to this judicial belief system are more concerned with applying the rule of law to cases before it rather than advancing a social agenda. While the liberal justices who believe the Constitution is a “living document” which they believe gives them the authority to interpret the Constitution to include, or exclude any rights they are seeking to implement or restrict. This should be one of the most frightening ideas to the American people. This method of interpreting the Constitution grants the Supreme Court the ability to completely circumvent the will of the people in order to further any political ideology the Justices wish.

Those on the left always accuse a Republican president as wanting to stack the Supreme Court with Christian, pro-life, conservative justices in a coordinated attempt to first overturn Roe v. Wade and then to stamp out any political adversaries. This is a view that is often painted as more dangerous to the rights of Americans rather than the liberal “living document” view. However, while the decisions under a liberal-leaning court often establish certain values as law, such as in Roe v. Wade, originalist judges keep the court from legislating on social issues that should be decided by the voters in their respective states. In fact, if the worst case scenario was to occur and a conservative court was to strike down Roe v. Wade, abortion would not be immediately banned. The issue would instead go to the voters and each state would get a chance to decide what they choose to permit. However, as proven since Franklin Roosevelt’s administration, liberal judges take it upon themselves to enact into law any cause they see worthy whether or not it is allowed under the Constitution or even favored by the people. This is a dangerous path for the rights of Americans to essentially grant one branch of government the ability to govern with no recourse.

Supreme Court appointments have been an important issue in the Obama campaign. Obama claims that John McCain must be defeated because he will appoint pro-life justices who will look to overturn Roe v. Wade. This is the main concern Democratic presidential candidates have voiced every election since the court decided the case. On the campaign trail, Obama has given several indications of the political ideology he would seek out in his judicial nominees. On his campaign website, Obama offers a statement on the recent Supreme Court decision that placed restrictions on late-term abortions, the type of abortion procedures that lead to the situations discussed in the Born-Alive Infant Protection Act which Obama opposed both as a Illinois State Senator and as a US Senator. (For more details see previous Anti-Obamassiah Refuge post, Obama’s Unfailing Opposition to the Born-Alive Infant Protection Act.) Obama placed this statement on his campaign website, “I strongly disagree with today’s Supreme Court ruling, which dramatically departs from previous precedents safeguarding the health of pregnant women. As Justice Ginsburg emphasized in her dissenting opinion, this ruling signals an alarming willingness on the part of the conservative majority to disregard its prior rulings respecting a woman’s medical concerns and the very personal decisions between a doctor and patient. I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women.”

His statement shows how passionate Obama is about placing absolutely no restrictions on when a pregnancy can be terminated. In fact, in an effort to advance their pro-abortion stances, Obama and Justice Ginsburg have completely dismissed a crucial part of the Roe v. Wade decision. The Roe v. Wade opinion written by Justice Blackmun states, “For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” In this statement, the court is only legalizing abortions in the first trimester of pregnancy. After the first three months, Blackmun writes, “For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” Thus giving the states the ability to regulate abortions performed after the first trimester. In Obama’s crusade to ensure a mother’s right to end her pregnancy up to and even beyond child birth in cases where the abortion attempt is unsuccessful, he has completely dismissed the actual ruling in Roe v. Wade and is focused to expand the decision until there can be absolutely no restrictions on abortion. Obama’s goal is to ensure no restrictions can be placed on abortion in terms of methods allowed, prohibitions of aborting an infant at any time during the pregnancy right up to the point of labor, requiring parental notification of minors who are seeking an abortion, and restricting or limiting the use of tax money to assist mothers seeking abortions in the United States or abroad. To achieve this, Obama looks to appoint justices that hold the same view of the Constitution being open to different interpretations for each issue presented to the court. The reason this is so appalling for a politician to pursue is that the court can, essentially, pass laws from the bench without ever giving the American people or their elected representatives a voice in the process.    

Obama further proves his desire to appoint justices willing to twist the interpretation of the Constitution to allow any law he favors with his past actions against the Second Amendment. On the issue of gun control, Obama has always favored very extreme restrictions on private firearm ownership. While a state senator in Illinois, Obama voted against a law that would prevent criminal charges being brought against someone who used a handgun to protect themselves in a home invasion. In Chicago, handguns are banned and homeowners used to be subject to criminal charges if they defended themselves and their families against a burglar by using a handgun kept in the home. Luckily, the Illinois legislature passed a law absolving homeowners from criminal charges in these situations but not with Obama’s support. Obama voted against the bill. When it passed despite of his opposition, the bill was vetoed by the governor. The veto was overridden but not after Obama seized the opportunity to vote against it one more time. When the Supreme Court handed down their decision that the Second Amendment does grant a right to private firearm ownership for self defense, Obama gave a statement that cannot truly be taken seriously in light of his voting record on gun control through both his state and federal senate career. shows how Obama remarked on the Heller decision by stating, “I have always believed that the Second Amendment protects the right of individuals to bear arms but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures.” Apparently from his vote against Chicago residents using a handgun for self defense, Obama is not in agreement that the Second Amendment protects the right to self defense.

As far as Obama’s Second Amendment support goes, his other votes and statements he has made in the past help to show what Obama feels are “common-sense, effective safety measures.” These statements help to shed light on what course of action he will be nominating federal judges to pursue. In the Illinois Senate, Obama voted against lowering the minimum age for a Firearm Owner Identification Card, which all Illinois residents must possess in order to buy a firearm or ammunition, to 18 from 21. The law was proposed to help members of the military who were under 21. (Illinois Senate, March 25, 2003, SB 2163, vote 18) Obama voted to raise the taxes on firearms and ammunition 500% in Illinois. (Chicago Defender 12/13/99) He also voted against a bill requiring notification of gun owners’ when the state of Illinois ran record checks on them for no legal reason. (Illinois Senate, May 5, 2002, SB 1936 Con., vote 26) As far as allowing states and municipalities to establish their own gun laws, he actually means that he supports states and municipalities establishing gun control measures that he endorses. He has often referred to a president and court’s responsibility to protect states from other states’ flawed gun policy of allowing concealed carry. He has said, “I’m consistently on record and will continue to be on record as opposing concealed carry.” (Chicago Tribune, 4/27/04) These examples should leave no doubt in Obama’s views that, despite the words in the Second Amendment, no individual has the right to self defense through gun ownership. These are just a few examples of specific votes and statements Obama has made in the past that give voters an idea of where he truly stands on Second Amendment issues. As the votes and statements prove, restricting the rights granted in the Second Amendment is an important goal of Obama’s and there can be no doubt in the voters’ minds that he will appoint Supreme Court justices that he feels will promote this agenda of reinterpreting the Constitution to grant absolute rights and court-mandated full government support to abortion-on-demand while blatantly ignoring the precise wording of the Second Amendment that actually does recognize the peoples’ right to firearm ownership. The main difference between the conceal carry laws Obama opposes so much and the abortion ruling he defends with every fiber of his soul, is that the American voters express their desire of having conceal carry permits through state-wide elections. Abortion, however, was sent to the Supreme Court and decided by activist judges before the people even had a chance to voice their disapproval at the ballot box.

No one can forget Obama’s statements in San Francisco at a private fund raising event when Obama thought he was off of the record and he explained, “And it’s not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren’t like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.” It is very obvious from these remarks that Obama has no respect for religion or gun ownership, which are both explicitly protected under the First and Second Amendments of the Constitution.

Further proof of the characteristics of potential Obama judicial nominees also comes from looking at his concerns about the last two Supreme Court justices to be appointed. The Senate confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito were a very partisan process where the Democrat Senators delayed the confirmations as long as they could while they asked many divisive questions which were more concerned with the nominees’ political beliefs rather than their ability to effectively sit on the nation’s highest court and determine the constitutionality of the cases brought before them. Concerns were raised in the press about John Robert’s two adopted children because some wondered how Roberts was able to adopt two white children so close together. The questioning of Alito became so intense and cruel that his wife was brought to tears during the confirmation proceedings. Obama, the self-described, bipartisan solution-seeker voted with the rest of the Democrats when he voted against confirming Roberts and Alito. Why did he oppose the nominations? Because, as he expressed repeatedly, he said that they were crucial to the conservative right’s ultimate plan of repealing Roe v. Wade. This has been the Democrat Party’s main issue in the last three Republican presidents’ judicial nominees. Perhaps the most notorious example of the Democrats’ brutal attempts to disqualify a Supreme Court appointment was during the confirmation hearing of Clarence Thomas. This is where the party that supports affirmative action, tried desperately to ruin the second black man to be nominated to the Supreme Court’s personal and professional reputation in their efforts to protect their holy grail of Roe v. Wade.

This issue is not only about abortion and gun rights, although both are very important issues. A judiciary that Obama would be allowed to stack in his favor would also be expected to advance his extreme leftist ideas. Among these are his positions on whether or not employees can use a secret ballot system when voting whether or not they want union representation. Obama, through his feeling of indebtedness to the labor unions, sides with their goal of removing secret ballot from these employee votes, which would no doubt, subject those who vote against union representation to union and fellow employee scrutiny.

Also at issue is Obama’s support of gay marriage. Gay marriage is not only about preserving the sanctity of the traditional family; there is also an aspect which would affect almost every church-going American. If the Supreme Court were to rule that a ban on homosexual marriage is unconstitutional, most likely the deciding justices would claim the ban as running contrary to the Fourteenth Amendment’s Equal Protection Clause as they have used for most of their social engineering decisions in the past. If this were the case, any church that did not want to perform homosexual marriages would then be liable to class action law suits which would place the churches in the position of either changing basic tenets of their theological beliefs or leaving themselves open to bankrupting class action law suits. All of this could be done without any input from the voters or their elected representatives.

Perhaps the most amazing issue Obama has supported which he could make law with a Democrat Congress and a self-appointed judiciary would be making US citizens liable to an International Criminal Court (ICC.) This is an issue that Obama has weighed in on in the past. In David Freddoso’s book, The Case Against Barack Obama, he discusses Obama’s support of America entering into a treaty that would place US citizens under the ICC’s jurisdiction despite the court’s lack of a presumption of innocence and due process rights which are at the foundation of the American judicial system. The ICC also brings up concerns of placing US military in risk of being tried by a foreign court for military actions. Placing America under the jurisdiction of a foreign court also calls the nation’s sovereignty into question. In 2004, Fredosso discusses Obama’s comments to a small liberal publication when he voiced strong support for the ICC and blamed the Bush Administrations, “general arrogance that was on display before Iraq…it was true of our unilateral rejection of the International Criminal Court which, had we been a signatory, could have actually dealt with Saddam Hussein.” Obama conveniently doesn’t mention how the US waited for months before acting to give the United Nations a chance at solving the problem in Iraq. In several questionnaires leading up to the 2008 election, Obama gives vague answers about his support for the ICC. A questionnaire from Citizens for Global Solutions asked about Obama’s support for treaties such as the ICC, Kyoto Treaty, Law of the Sea, and Test Ban Treaty. Without specifically mentioning the ICC Treaty, he does say he approves of such treaties but he does not give specifics of which treaties he supports. With a Supreme Court tailored to Obama’s agenda, Americans very well might become subject to a foreign government that does not afford them the same protections they receive under the US Constitution. Obama supports this treading on American Constitutional rights despite his Harvard Law degree and work as a constitutional attorney.

So how is the process any different when Republican senators are confirming justices nominated by a Democrat president? To give an idea, during the entire history of the Supreme Court, twelve nominees have been outright rejected by the Senate. No Democrat president has ever had a nominee rejected by a Republican senate. Is this because the Democrat presidents don’t nominate controversial justices? No, it is actually very much to the contrary. President Clinton nominated Justice Ruth Bader Ginsburg for the Supreme Court. She was the first justice to voice her support for Roe v. Wade during her confirmation hearing; she supported the decision in Roe v. Wade even though she described the ruling as, “heavy-handed judicial intervention.” She is also considered by many to be the most liberal activist judge to ever sit on the court and probably the current justice on the court most supportive of the “heavy-handing judicial intervention” known as the Roe v. Wade decision. The difference lies in the different approaches taken by Democrats and Republicans when considering court nominees. Democrats will fight the confirmation of a justice that they believe is a threat to Roe v. Wade, which is any justice that decides cases purely on powers granted in the Constitution instead of creating the powers they wish were contained. However, the Republicans mostly confirm judges based on the qualifications they have to sit on the bench. They hold a belief that the voters have voiced the direction they would like the Supreme Court to take when they elect a Democrat president. This is the reason why John McCain along with most Republicans voted to affirm both Justices Ginsburg and Breyer when President Clinton nominated them to the high court.

While the issue of Supreme Court appointments is not front-and-center in this election it should be a deciding factor in every voter’s decision this November. Activist Supreme Court Justices have recently proved what they are capable of in their 2005 decision in Kelo v City of New London where the court ruled that private land can be confiscated by the government for the use by another private individual or company in the name of economic development. This ruling was before the nominations of Chief Justice John Roberts and Justice Samuel Alito. This ruling came from the Supreme Court shaped by Bill Clinton and it ruled that an American citizen’s land can be taken over by another non-government entity for private use for economic development. Essentially, no one is safe from a government deciding their home would be better used as a Costco. Obama and his campaign want to scare voters into believing that a conservative court places a priority on pressing their morals on the American People. However, through the liberal justices’ twisting of the Constitution, especially the Fourteenth Amendment’s Equal Protection Clause, an Obama-sympathetic court will, in fact, impose their social agenda on every American without giving any voice to the American voters or their duly elected representatives. The Kelo Decision is just a recent example of what voters have to lose by allowing a president to give the Supreme Court a liberal bias. Even if Obama’s worst nightmare is realized and the Supreme Court was to strike down Roe v. Wade, the issue of abortion would only go to the voters to decide. In no way would abortion be immediately declared illegal. The next president may have the chance to fill up to three Supreme Court justices. If Obama is the one who makes these appointments, Americans will lose their voice on very divisive social issues.


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    Is this really a new type of politician? Or is the Obama machine just using politics as usual in their campaign?


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