Michael Gaynor
President Obama and the activist judge threat: beware
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By Michael Gaynor
February 3, 2009

The price of freedom is eternal vigilance.

President Obama took an oath to uphold the United States Constitution when he was inaugurated as the 44th President of the United States.

But the record shows that President Obama is inclined to try to change America and its Constitution by putting judicial activists on the bench.

Americans don't want that kind of change and must be alert to the danger.

Steven Ertelt, LifeNews.com Editor, reported the good news about the position of the American people in "Poll Shows Americans Wary About President Obama Appointing Activist Judges" (www.lifenews.com/nat4808.html).

Mr. Ertelt:

"For the pro-life movement, one of the biggest ramifications of the 2008 presidential election is a pro-abortion president who will appoint Supreme Court judges who will keep virtually unlimited abortions in place for decades longer. Now, a new poll suggests Americans are wary of such activist judges.

"Americans have long been concerned about judges making up the law from the bench, as the high court did in 1973 when it allowed abortion on demand via the Roe v. Wade and Doe v. Bolton decisions.

"Anyone who is curious about the attitude Americans have about President Barack Obama and his potential ability to choose one or more high court judges need only to review a new Rasmussen survey.

"The result of the national telephone poll shows nearly two-thirds of voters, 64 percent, say U.S. Supreme Court decisions should be based on what is written in the Constitution.

"Rasmussen found that view regardless of party affiliation, with 79% of Republicans, 64% of unaffiliated voters and 52% of Democrats taking that view.

"But only 35 percent of those surveyed believe Obama shares that view.

"In fact, during the presidential campaign, Obama advanced a judicial activist philosophy and said judges should decide cases based on their own 'deepest values,' 'core concerns,' and 'the depth and breadth of [their] empathy.' "For Obama, 'the critical ingredient is supplied by what is in the judge's heart' — not what is in the text, principles, and history of our Constitution and other laws.

"The Rasmussen findings match up well with the results of a November 2008 poll from the Polling Company, which found that, regardless of which presidential candidate they supported, voters favor judicial restraint by more than three to one.

"Some 70 percent of voters said they prefer a president to nominate judges who 'will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.' Only 22 percent shared Obama's view on activist judges.

"Wendy Long, the chief counsel for the Judicial Confirmation Network, told LifeNews.com that it is up to members of the Senate to make sure judicial activists don't get confirmed to the Supreme Court.

"'President Obama's unprecedented call for judicial activism must be met with an unprecedented level of Senate scrutiny,' she said.

"'For every nominee, there should be a presumption that he would — as President Obama has told us he prefers — decide cases based on his personal views,' she said. 'It should be up to each individual nominee to rebut the presumption and to prove that he would rule on the basis of what the law actually provides, as two-thirds of Americans believe judges should.'"

Mrs. Long issued the following open memorandum titled "Rasmussen Poll Shows U.S. Voters Disagree with Obama on Court":

"Anyone who wonders if American voters agree with President Obama's criteria for picking Supreme Court Justices should take a look at the results of a new Rasmussen Reports national telephone survey.

"The Rasmussen survey shows that nearly two-thirds of U.S. voters (64%) say U.S. Supreme Court decisions should be based on what is written in the Constitution, but only 35% think that President Obama shares that view.

"The Rasmussen findings are extremely close to the findings in a November 2008 nationwide survey of actual voters by The Polling Company, which found that regardless of whether they voted for Obama or McCain in the presidential race, voters favor judicial restraint by more than 3 to 1. A full 70% of voters said they prefer a President to nominate Justices to the Supreme Court and judges to the federal courts who 'will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.' Only 22% thought that judges should, as President Obama urges, 'take into account their own viewpoints and experience'" in deciding cases.

"Rasmussen found that regardless of party affiliation, Americans believe that Supreme Court rulings should be based on what is in the written Constitution: 79% of Republicans think so, as do 64% of unaffiliated voters and 52% of Democrats.

"The U.S. Senate will have the responsibility of evaluating and voting on President Obama's judicial nominees. President Obama has advanced the most radical judicial activist philosophy of any president in American history. He said that judges should decide cases based on their own 'deepest values,' 'core concerns,' and 'the depth and breadth of [their] empathy.' According to President Obama, 'the critical ingredient is supplied by what is in the judge's heart' — not what is in the text, principles, and history of our Constitution and other laws.

"President Obama's unprecedented call for judicial activism must be met with an unprecedented level of Senate scrutiny. For every nominee, there should be a presumption that he would — as President Obama has told us he prefers — decide cases based on his personal views. It should be up to each individual nominee to rebut the presumption and to prove that he would rule on the basis of what the law actually provides, as two-thirds of Americans believe judges should."

The price of freedom is eternal vigilance.

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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