Friday, May 08, 2009

Barack Obama’s judicial preferences: 2003 to Present, in his own words.

Revised and links added at 3:15 pm on Friday.
Jeff Berkowitz: And, you are not going to say whether you would support [Miguel] Estrada [Now in the news in a different context] or Priscilla Owen or Bill Pryor or any of those [President Bush appellate court] nominees. Is that right?

Barack Obama: Owen, Pryor—I think there is a strong basis for opposing them.

Jeff Berkowitz: Estrada, you don’t—

Barack Obama: Estrada, I don’t know enough because, partly because—
The conventional wisdom is that President Obama will pick a replacement for Justice David Souter who is reliably liberal or, to use the modern euphemism for those views, progressive. Most likely that ”progressive,” will be female and Hispanic and possibly lesbian. In this day of identity or ethnic, gender and sexual orientation politics, Obama might think someone with all of those traits to be ideal.

But, if we go back to the “Less guarded Barack Obama,” of 2003, before Barack was a Barock Star, we will find the core principles President Obama is looking for in a Justice. These may be viewed as necessary but not sufficient conditions for the person to be nominated to the Supreme Court. He wants someone whose “fundamental vision of the Constitution is not flawed,” particularly with respect to civil liberties and civil rights.

But, that was his announced criterion when he was playing defense, throwing counterpunches as he and his fellow Dems dealt with a Republican President making the choice.

But, now the situation is quite different as he is the "Man." Further, one of Obama's practice areas when he was in the private sector with Miner, Barnhill and Galland was civil rights litigation. And, prior to the Democrats becoming the majority party in the Illinois General Assembly in 2003, Obama spent a fair amount of time working on racial profiling legislation (monitoring traffic stops for racial and ethnic bias) and capital punishment reform, including looking for sentencing and conviction disparities based on race. [Once the Dems obtained a majority in the State Senate and control of the Governor's mansion to complement their long standing majority in the State House, Obama passed about twenty-five different pieces of legislation that were much broader in scope.]

So, take a listen to the observations Obama had in 2003 about some appellate nominees, and his thoughts as to when filibusters were justified. But, remember the playing field has changed considerably since then. However, Obama's comments still serve to give us a sense of his priorities as he selects a Supreme Court nominee.
Jeff Berkowitz: Miguel Estrada, he was appointed by the President [to the D.C. Circuit Court of Appeals]. The Democrats have chosen to filibuster

U. S. Senate Candidate and State Senator Barack Obama (D-Chicago): Yes.

Jeff Berkowitz: that appointment.

Barack Obama: Right.

Jeff Berkowitz: If you were voting, would you support that filibuster.

Barack Obama: You know, I have not looked at Estrada’s record carefully enough to make a determination.

Jeff Berkowitz: He worked in the Clinton Solicitor General’s office. You know that.

Barack Obama: I do.

Jeff Berkowitz: And got very good reviews.
Barack Obama: I actually had dinner with [Miguel Estrada] at the White Sox correspondent’s dinner. He was at my table and he was a very gracious man and by all accounts a gentleman. But, here’s my point. It is that—I do think the U. S. Senate has an important role in advise and consent and it’s perfectly appropriate for a Senator to oppose a nominee even if they’re [sic] smart, even if they’re [sic] nice, if their fundamental vision of the constitution is flawed. If somebody doesn’t believe in the protection of civil liberties, if somebody does not believe in the promotion of civil rights, then that I think is a rationale and here’s one of the reasons for it—is if you look at the way that the federal bench has generally caved in the face of John Ashcroft and the Executive Branch and the Patriot Act, it’s a disgrace. And that is the bulwark that we have to protect ourselves from an overreaching [Executive branch]—

Jeff Berkowitz: So you are opposed to the Patriot Act?

Barack Obama: Absolutely. Absolutely. Would have voted against it.

Jeff Berkowitz: And, you are not going to say how you—

Barack Obama: And I think it is a shame that we had only one U. S. Senator in the entire U. S. Senate who voted against it.

Jeff Berkowitz: And, you are not going to say whether you would support Estrada or Priscilla Owen or Bill Pryor or any of those [President Bush appellate court] nominees. Is that right?

Barack Obama: Owen, Pryor—I think there is a strong basis for opposing them.

Jeff Berkowitz: Estrada, you don’t—

Barack Obama: Estrada, I don’t know enough because, partly because—

Jeff Berkowitz: The concept of filibusters, you support, for judicial appointments.

Barack Obama: I think there are times where a filibuster could be appropriate.

U. S. Senate Candidate and State Senator Barack Obama (D-Chicago), interviewed on the Chicagoland political interview TV show “Public Affairs with Jeff Berkowitz,” July 24, 2003. (c) 2003, 2009
Note, in 2003, Obama does not appear to have been too focused on empathy as a criterion for judicial selections (as he is now), but in 2005 (when he voted against Chief Justice Roberts), U. S. Senator Obama was looking for “judges with heart:”

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. [See here].

Apparently, attorneys with “heart,” represent individual plaintiff employees or consumers, not management or shareholders.

Moreover, it is interesting that Obama did not empathize more with Estrada, an Hispanic who came to this country in his late teens speaking little English, but then graduated with honors, like Obama, from Columbia as an undergrad and Harvard Law School. Further, Estrada, although a Republican nominated to the D. C. Circuit Court of appeals by Bush, did his government service in the Democratic Clinton Administration.

The Democrats kept Estrada off the appellate bench by successfully filibustering Estrada’s nomination to the D.C. Circuit Court of Appeals. Apparently, their concern was not that Estrada was insufficiently qualified. Instead, it was that he was so qualified that he could be elevated at a later date to the Supremes. That, of course, would have been quite a coup for the Republicans-- to nominate the first Hispanic to the U. S. Supreme Court. Now, of course, that opportunity rests with President Obama, as he considers elevating Judge Sonia Sotomayor to the Supremes from the 2nd Circuit Court of Appeals.

Ironically, some liberal critics of Judge Sotomayor fret that she lacks the intellectual firepower to keep up with the dominant conservatives on the court, e.g., Justice Scalia. If so, President Obama may turn to 7th Circuit Judge Diane Wood, who, as a colleague of Obama’s on the University of Chicago Law School faculty, is clearly not lacking in brainpower. However, at 58, Judge Wood is a bit long in the tooth for a President who wants to make sure his selection has enough time to have a maximum impact. That takes us back to former Harvard Law School Dean, now Obama Solicitor General, Elena Kagan (48), this journalist’s prediction of a week ago to replace Justice Souter. [See here].
Jeff Berkowitz, Show Host/Producer of "Public Affairs," and Executive Legal Recruiter doing legal search can be reached at *************************************************************
Other recently posted shows on the Public Affairs YouTube page include the fastest five minutes on the web- a New York Times video about Obama-Berkowitz,a show with State Senator and possible Republican candidate for Governor, Matt Murphy (R-Palatine), a show with Senator Steans about budget deficits and education reform, a show with conservative activist Joe Morris about SB600 as a litmus test for reformers, a show with Senator Rickey Hendon (D-Chicago) about hot state legislative issues and politics, a show with Bill Brady, State Senator and 2010 Republican Primary candidate for Governor, a show with State Senator and likely 2010 10th CD candidate Susan Garrett(D-Lake Forest), the second fastest five minutes on the web- a segment of Bill O'Reilly with Berkowitz discussing a clip of Obama from 2002 on Blagojevich and many more shows.