Legal Commentary

Judicial Philosophy Matters

By Big Tent Democrat

Matt Yglesias takes Ed Whelan (Whelan's response to Yglesias) to task for taking Barack Obama to task for his statements on the importance of judicial philosophy:

While his language is over the top (though, upon reflection, Whelan in his response has some evidence that Obama is intentionally making a false statement here, but pols do that) , I think Whelan makes a good point - Obama is clearly avoiding the issue (and 4 days from an election, probably a smart thing.) Obama clearly does intend to discount the importance of judicial philosophy in this interview, and he is wrong when he does so. More.

The President's choice of Supreme Court justices is, in my view, the second most important power he has (after the de facto power to use military power). I think that is Whelan's point - that Obama is answering the question in a political manner. Of course, Obama is a politician, 4 days from an election, so to expect some "straight talk" on this issue is clearly not realistic. You would likely hear the same type of thing from McCain.

Pols are pols and do what they do and Whelan knows this. As a partisan (as I am) he certainly is looking for an ax to grind with Obama but his basic point is a fair one.

Yglesias' defense of Obama is rather silly. Yglesias writes:

This seems to totally miss the point. The reason Supreme Court decisions are rarely unanimous isn’t that cut-and-dry legal issues are rare. . . . [I]n his eagerness to call Obama a liar, Whelan is completely misrepresenting what Obama is saying — he’s not, at all, denying that judicial philosophy is important. He’s just making the point that the cases where it comes into play are a minority of the total docket that sits before the federal judicial system.

Brian Williams specifically asked Obama about Supreme Court appointments, not "the total docket that sits before federal judicial system." In context, Obama is clearly ducking the question. I do not know if Williams followed up and pressed Obama on the point, but it is obvious that Obama avoided the question, which is Whelan's actual point I think. It is unfortunate that Whelan resorts to calling Obama a liar - Obama did not lie, he ducked the question (upon reflection, perhaps a close call as I note above.) Whelan knows this. But 4 days from an election, we all get caught up in the "he's a liar" thing. I am not sure that Yglesias knows this. His post misses the issue. But I doubt he would have defended a likely similar McCain answer. But then again, Whelan would not have attacked a similar McCain answer either.

By Big Tent Democrat, speaking for me only

Full post as published by TalkLeft on October 31, 2008 (boomark / email).