Tuesday, January 24, 2006

Senator Obama: Transcending politics? Not on the Judge Alito vote.

Links added and revised at 9:00 pm on Tuesday night and at 11:15 am on Wednesday morning
Obama to Vote No on the Nomination of Judge Alito to the Supreme Court.

U.S. Senator Barack Obama (D-IL) today released the following statement on the nomination of Judge Samuel Alito Jr. to the United States Supreme Court:

“While I certainly believe that Judge Samuel Alito has the training and the qualifications necessary to serve as a Supreme Court Justice, after a careful review of his record, I simply cannot vote for his nomination."

“The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito’s many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties."

“By ruling this way so many times over a course of so many years, Judge Alito simply does not inspire confidence that he will serve as an independent voice on the U.S. Supreme Court."

“I do hope that if he is confirmed, he proves me wrong. I hope that he will uphold the best traditions of the Supreme Court as a bastion of equality and justice on behalf of every American citizen.”
U. S. Senator Barack Obama [D-IL], Press Release, January 24, 2006 [Emphasis Supplied]
What a sad day for Senator Obama. No matter what he has said about running for President or VP in 2008, Barack Obama clearly needed to keep his options open with the hard left in the Democratic Primaries and the national funding vineyards. As my gentle readers know, it is often all about money. Senator Obama, over the last year, has proven to be a prodigious national fund raiser, for himself and for his allies.

None of the Democratic potential presidential candidates, save Senator Feingold [D-WI], voted to confirm Supreme Court Nominee John Roberts [See here]. That would have been way too risky for most, in terms of coming out of a presidential primary intact, in light of the Democratic far left activists’ disproportionate impact on a significant number of Democratic Primary outcomes-- not completely unlike the Republican far right activists' disproportionate impact on a significant number of Republican Primary outcomes [although that is clearly not the case in Illinois’ current Republican Gubernatorial primary, in which moderate Republican Judy Baar Topinka has outsmarted, at least so far, the larger, but less cohesive, conservative movement.]

The considerations by Senators Feingold and Obama for the Alito vote were similar to that of the Roberts vote, except more so. With Judge Alito having a fairly conservative fifteen year judicial record, even though it was not one in which outcomes were determined by the identities or "relative power," of the parties [as Senator Obama suggests] , there was no way Feingold could take a chance with the Democratic activists, notwithstanding his previous demonstrated streak of independence.

Given that Feingold decision Obama was not going to be a lone Democratic presidential/VP candidate dissenter and support Judge Alito's confirmation [Despite what his Republican critics say, Senator Obama has historically been a cautious politician]. Indeed, it is looking like no more than five, if that, Democratic Senators will vote for Judge Alito [At the moment, Senator Ben Nelson of Nebraska is the only Democratic Senator to state publicly his support for Judge Alito]

The Democratic hard left is calling in its chits; Senator Durbin is cracking his whip, notwithstanding his protestations to me at his January 6, 2006 press conference [see here] that he went into this confirmation hearing with an “open mind.” Gimme a break. Senator Whip Durbin will give a break to Democratic senators in Red states with tough, upcoming re-election contests, perhaps, but that is about it. Every other Democratic Senator had better toe the line.

Senator Barack Obama, a man about whom I had written glowingly and stated, prior to his election, that he transcends race and politics, had no choice. Given the above political situation, he had to vote not to confirm. What was so disappointing, however, was the almost complete lack of thought, intelligence and style in the above statement that Senator Obama released on his Alito vote. Indeed, Obama's statement on Judge Alito is a further deterioration in the quality of reasoning and writing exhibited in Senator Obama's longer statement seeking to explain his no vote on Judge Roberts [See here].

Senator Obama argues Judge Alito’s judicial record demonstrates:

[C]onsistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual
rights and liberties.

An overreaching federal government? What do you know, Senator Obama has suddenly become a libertarian. Set a place for him at the CATO Institute funder.
[See here]. Cato could sure use Senator Obama's fund raising ability. What a power couple that would be.

Would it be too much to ask for the good Senator to provide us with a little analysis? Maybe at least a few cases that Senator Obama might discuss and for which he might explain how the cases should have been decided, based on the precedent, the laws and/or the Constitution—as opposed to the identities of the parties to the lawsuit-- which I would have thought was not the way he taught University of Chicago Law School students to decide cases.

This dribble, that the good Senator did release, about the powerful and the powerless, etc. is really unbecoming for him, but it is becoming part of his standard fare . It suggests that the Senator thinks we are a nation that should be governed by the whims and desires of that segment of the population that the Senator thinks are "good" and not our laws and the Constitution.

Further, Sen. Obama is implying judges need not listen to oral arguments and read the briefs. Instead, Obama's line of argument suggests judges should simply look at the biographies and backgrounds of the parties, and decide the case by determining which party has the more compelling life story, based on the judge’s own criteria. Is that the brave new American Judiciary Senator Obama envisions?

I know the good Senator does not believe that, but then why release an item that sounds like it came from Robert Redford in “The Candidate.” As you may recall, that movie was about a senate candidate who started out as an idealist and found himself, during the campaign, talking about representing the tall and the short, the fat and the thin, the smart and the dumb—but not apparently—the powerful and the powerless.

As I said, a sad day for Senator Obama, who, at least today, does not transcend politics, and becomes yet again, just another pol.

Of course, we would be happy to have Senator Obama come on our show and discuss and debate the issues, as he used to do, but I won’t hold my breath.

It appears, unless the Democrats can pull a rabbit out of their collective hat or get up the numbers and their nerve to do a filibuster, and notwithstanding the havoc that the Bobsey Twins from Maine or the man from Rhode Island who calls himself a Republican Senator might wreak on their Party, Judge Alito will squeak by. [See here] And the next time an ultra liberal Ruth Bader Ginsburg type is nominated to the Supremes by a Democratic President, the Republicans will deferentially provide a 90 plus, or so, vote. What can I say, chivalry is not dead. Dying perhaps, but not dead.
Jeff Berkowitz, Show Host/Producer of "Public Affairs," and Executive Legal Recruiter doing legal search can be reached at JBCG@aol.com