Legal Commentary

Obama On SCOTUS Justices

By Big Tent Democrat

A 2005 Daily Kos post by Barack Obama chiding people like me for being very hard on Democrats who voted for John Roberts is making the rounds again and it is worth revisiting today in light of the 5-4 vote in today's Gitmo/habeas corpus decision. Obama wrote:

. . . It's this non-ideological lens through which much of the country viewed Judge Roberts' confirmation hearings. A majority of folks, including a number of Democrats and Independents, don't think that John Roberts is an ideologue bent on overturning every vestige of civil rights and civil liberties protections in our possession. Instead, they have good reason to believe he is a conservative judge who is (like it or not) within the mainstream of American jurisprudence, a judge appointed by a conservative president who could have done much worse (and probably, I fear, may do worse with the next nominee). While they hope Roberts doesn't swing the court too sharply to the right, a majority of Americans think that the President should probably get the benefit of the doubt on a clearly qualified nominee.

A plausible argument can be made that too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt. That certainly was the operating assumption of the advocacy groups involved in the nomination battle.

I shared enough of these concerns that I voted against Roberts on the floor this morning. . . .

(Emphasis supplied.) I was among those who argued there was "too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt." I think events have proven me and other "advocates" right and even though Obama voted against Roberts, he certainly did not fight against Roberts or Alito. Today, both Roberts and Alito joined the dissent filed by Justice Antonin Scalia:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.

The Chief Justice and Justice Alito joined an intemperate dissent that is blatant in its disregard for the judicial process. These are not judges who lie "within the mainstream of American jurisprudence." Obama's expressed view that they could be viewed as such demonstrated poor judgment.

Of course his vote was fine. But he did not fight against Justices Roberts and Alito. And just as his 2002 speech against the war in Iraq demonstrated his good judgment, this episode is a demerit for Obama's judgment in my considered opinion.

Speaking for me only.

Full post as published by TalkLeft on June 12, 2008 (boomark / email).