Thursday, September 22, 2005

Senator Obama, a Different kind of Pol? Not today.

Edited slightly and link to Obama Statement on his Roberts' Vote added at 1:00 pm on Friday.

Senator Obama was to announce how he would vote on the nomination of Judge John G. Roberts to serve as the next Chief Justice of the U.S. Supreme Court tomorrow morning on the Senate floor. However, due to the Senate not being in session tomorrow, he moved his announcement to this evening and then to this afternoon, with the press release going out just in time [5:24 pm (CST)] for the network evening news. It appears, from the content, style and syntax, the press release may have been hurried a bit- with the same effect of a QB hurrying his throw to avoid getting crunched by a big defensive tackle.

Senator Obama, in a two page press release [See here] that straddled, intellectually, a fence or two, decided to go with his Party’s senate bosses [Senator Reid, Nevada and Senator Durbin, Illinois] and against the Ranking Minority member on the Senate Judiciary Committee [Senator Leahy, VT], whom Obama, to his credit, defended at the end of his statement against the “unfair attacks,” Leahy received from “largely Democratic Advocacy Groups,” for voting to recommend confirmation of Judge Roberts as Chief Justice.

Senator Obama’s decision seemed to reflect somebody who decided to vote left and speak centrist, in superficially, measured tones.

Senator Barack Obama is supposed to be a different kind of pol, transcending race, transcending party, transcending ideology and transcending politics. Indeed, even I have said that from time to time. Urban legend or U. S. Senate reality? Today’s decision seems to reflect more the former than the latter.

The conventional wisdom is that no serious presidential or vice-presidential candidate can risk voting yes for Judge Roberts [But, See Sen. Feingold, below]. Yes, most fair-minded people would concede the Judge is extremely well qualified in that his intellect, devotion to the Constitution and the Law, judicial temperament, background [won 25 of 39 Supreme Court arguments], two years of solid experience, performance and acclaim on the D.C. Circuit Court of Appeals [the most important circuit of the federal court of appeals] and integrity can only be described as superb and without a blemish.

But, for a Democrat who aspires to be President or Vice-President of the United States, it is said that he or she simply cannot risk alienating the liberal Democrat activists and donors, who control the Democratic primaries as much as their counterpart conservative Republican activists and donors control that Party’s primaries. And, the Democrat base cannot countenance a Supreme Court nominee who will not promise to reject any challenges to Roe, who will not promise to rule for the little guy [or little woman] and who instead promises to uphold the Constitution and the laws of the United States, irrespective of what that means in terms of who wins and who loses. No, we are told by Ralph Neas that is not the “American Way.”

Senator Obama may not be running for President in 2008, but it would be hard for him to turn down a VP nomination, and if circumstances were absolutely right, he might seek the Presidency.

So, Senator Obama decided to go with his party’s bosses and with the Democrat liberal activist base. Obama proclaimed that Judge Roberts cannot be supported because Senator Obama does not know if Judge Roberts has the “heart,” for the Chief Justice job. Is that the constitutional law that Senator Obama taught at the University of Chicago Law School? You "gotta have heart,” as defined by the Democrat activist liberal base, by the Democratic Party Bosses Reid and Durbin to be confirmed as a U. S. Supreme Court Justice? I sure wouldn't want Sen. Obama grading my exam.

Senator Obama decided today not to march to the tune of a different drummer, but instead to go along with the Democrat Party bosses. He couldn’t agree with a liberal of impeccable credentials, former President Kennedy appointee and FCC Chairman Newton Minow, who [See here] set this standard for Supreme Court nominees:

Despite the lobbying of pressure groups pushing for party-line votes, senators should demonstrate that there is only one side: making sure that the nominee is an honest, able, thoughtful person who is devoted to our Constitution, not to one ideology or one political party or another. We should all be on the same side.

Minow then went on to urge Roberts' confirmation. Unfortunately, Minow diluted his own argument a bit when he qualified his praise of Judge Roberts:

My own conclusion is that it is inconceivable that the current administration would nominate a better qualified person to become chief justice [Emphasis supplied].

Nevertheless, the challenge for Senator Obama was clear. Would he line up with Newton Minow and tell his State and the Country that Obama is a different kind of pol, or would he line up with the senior senator and Party enforcer from Illinois and cautiously placate those who would have him toe the party line so that he can have a shot at the Democratic Presidential or Vice-Presidential nomination?

In essence, Obama said, to be the Chief Justice of the United States, you must pass the Obama ideological litmus tests by having a “heart,” that has historically held, currently holds and promises to hold in the future:

1. Affirmative action is an appropriate and Constitutional response to the history of race discrimination;
2. There is and should continue to be a Constitutional right of privacy for a woman to have an abortion;
3. The commerce clause of the Constitution empowers Congress to speak to issues of broad national interest that may be only tangentially related to what is easily defined as inner-city commerce; and
4. A person who’s disabled has the Constitutional right to be accommodated so that they can work along side the non-disabled.

With respect to all of the above constitutional questions, Senator Obama concluded, “the critical ingredient is supplied by what’s in the judge’s heart.”

Really, now. I would have thought that these are issues that should be decided based on a justice’s understanding and analysis of the Constitution, the laws of the United States, the precedent, the briefs and the arguments. That’s why students at the University of Chicago used to study the “Elements of Legal Reasoning,” as opposed to say, the “Elements of Legal Emotions.”

Further, under Senator Obama’s reasoning [or emotions] it is not so much what is being argued, but who does the arguing that should decide the case. Who needs briefs? Just show us your ID [but not your real ID], your race, your religion, your ethnicity, your bank account, your years of education and your “strength,” whatever that means. Obama profiling, so to speak. Obama said:

The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.

Well, let’s see, Judge Roberts was a lawyer, an advocate most of his career, representing his clients zealously, as required by the canons of ethics. I suppose Senator Obama has now concluded that no one who has predominantly represented corporations [i.e., shareholders, the strong?] and not individuals [i.e., the employees and the customers, the weak?] should be allowed to sit on the Supreme Court.

Why not take it to the next logical step, Senator Obama? Criminal defense lawyers who make a career of representing people who are accused and perhaps convicted of rape and murder should also not sit on the Supreme Court, as those clients were likely stronger than their victims?

And yet Senator Obama started his statement by reminding us of his prior role on the University of Chicago faculty where:

What engenders respect is not the particular outcome that a legal scholar arrives at, but the intellectual rigor and honesty with which he or she arrives at a decision.

Notwithstanding that, Senator Obama based his confirmation decision regarding Judge Roberts on the position Roberts had held or represented as a government or private lawyer and the “size,” or “strength,” of the entity or client Roberts represented.

Senator Obama was apparently not impressed with Judge Roberts talking about how the law and the judicial process are the great equalizers. No matter the size of the party, private or government, once a judge decides a matter based on the law and the facts, the entire force of the law and the government is put behind the enforcement of that decision. This equal and impartial enforcement of the law and judicial decisions is what is truly remarkable. That was the law and process which Judge Roberts admired. That blindfolded lady who holds the scales of justice? Senator Obama doesn’t seem to understand. That's no lady. That's justice. Senator Obama seems to want to put his thumb on the scales of justice- not reflecting the evidence, the law and the Constitution, but simply whether he prefers one party to another.

Finally, Senator Obama concludes with a mishmash of verbiage that seems to get it all wrong:

I will be voting against John Roberts’ nomination, although I do so with considerable reticence. I hope I’m wrong. I’m hopeful that this reticence proves unjustified and that Judge Roberts will show himself to be not only an outstanding legal thinker...

Considerable reticence? Meaning considerable reserve? Perhaps. Although I think Senator Obama means to say "considerable reluctance." But then, Senator Obama says, “I’m hopeful that this reticence proves unjustified…” Really? Senator Obama wants his reserve to be unjustified. Doesn’t he mean to say that he is hopeful that this reticence proves “justified…” Or did Senator Obama write this statement thinking he might vote to confirm and then changed his vote at the last minute and did not make all the appropriate changes in the text, getting confused between justified and unjustified? Hard to know what he is saying here.

I am left with the impression that Senator Obama didn’t really write this statement. The Senator Obama that I interviewed on my television show seven times spoke and wrote more thoughtfully, logically and more carefully than this. Maybe it is time for the Good Senator to be at events and on programs such as CBS’ Face the Nation less, ABC’s This Week less and back at the University of Chicago Law School and in his Senate office more. Who knows. That Senator Obama might really transcend politics.

Oh yes, the Senate Judiciary Committee voted 13 to 5 to recommend Judge Roberts be confirmed as the next U. S. Supreme Court Chief Justice. All Republicans on the Committee voted yes and they were joined by the Ranking Minority member Senator Leahy [VT.], Senator Kohl [WI.] and Senator Feingold [WI].

Senator Feingold, BTW, may be running in the Democratic Primary for President of the United States.

Barack Obama, a different kind of pol? Transcending party and politics? Demonstrating intellectual rigor and honesty? Not today.

Democratic Party Bosses Reid and Durbin? Couldn’t be happier, no doubt.
Jeff Berkowitz, Host and Producer of Public Affairs and an Executive Recruiter doing Legal Search, can be reached at

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