Michael Gaynor
President Obama should have Wendy Long teach him the proper role of judges
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By Michael Gaynor
April 6, 2012

Upholding Obamacare even though it really is unconstitutional would be a perfect example of (liberal) judicial activism and declaring it unconstitutional would be upholding the Constitution by judicially restraining the President and the Congress.

Then presidential candidate Barack Obama at a campaign rally in Westerville, Ohio,on March 2, 2008:

"I want my justice to understand that part of the role of the court is to look out for the people who don't have political power. The people who are on the outside. The people who aren't represented. The people who don't have a lot of money; who don't have connections. That's the role of the court."

When President Obama was pushing for "empathetic judges" in 2009, Major Garrett, then of Fox News, turned to constitutional scholar Wendy Long for comment.

Like the Founders, Long advocates impartiality instead of favoritism.

As Long wrote on April 16, 2009 in "What's the Matter with Empathy? Obama's criterion for picking federal judges would turn equal justice on its head" (www.nationalreview.com/articles/227308/whats-matter-empathy/wendy-long):

"What's wrong with being empathetic to...any group or individual in general?

"What's wrong with it is that federal judges swear an oath to 'administer justice without respect to persons' and to 'do equal right to the poor and to the rich,' among other things."

(Fittingly, Long now is running against New York junior Senator Kirsten Gillibrand, a judicial activist advocate and rubberstamp for liberal activist judges who recently earned the same "distinction" from National Journal that Obama earned before he was elected President — most "liberal" United States Senator.)

Garrett reported (www.foxnews.com/politics/2009/05/01/obama-pushes-empathetic-supreme-court-justices/#ixzz1r6xa4kJT):

"'President Obama has referred to this nice word empathy,' said Wendy Long, legal counsel to the Judicial Confirmation Network. Long clerked for Justice Clarence Thomas, whom Obama has described as one of the kinds of judges he opposes because of their lack of judicial training and lack of empathy.

"'(Obama) thinks judges should have empathy for certain litigants who come before them. Of course if you have empathy for everybody who comes before you, there are two sides to every case. If you have empathy for both sides then that's the same as having no empathy at all. So what he means is he wants empathy for one side and what's wrong with that is it is being partial instead of being impartial. A judge is supposed to have empathy for no one but simply to follow the law.'"

That should be readily understandable by a former president of Harvard Law Review (not to mention first-year law students).

Obama was elected president of Harvard Law Review (by fellow law students), but, campaign lies notwithstanding, he never was a law professor. He was a lecturer and then a senior lecturer at the University of Chicago Law School, but that law professor claim is resume padding.

Presidential candidate Obama put political opportunism over fidelity to the United States Constitution and the rule of law when he supported 'judicial empathy."

"The best way to have empathy for people and the best way to have empathy for our Constitution is to appoint judges who will rule based on the law and to have empathy, if you will, for the law only and to rule based on the law," Long gently explained."That's why Lady Justice is depicted as blind-folded. Lady Justice doesn't have empathy for anyone. She rules strictly based upon the law and that's really the only way that our system can function properly under the Constitution."

The more Obama talks about what courts are supposed to do, the clearer it becomes that he is not fit to nominate federal judges, and with Obamacare about to be declared unconstitutional, Obama, Obama essentially lobbied the United States Supreme Court to uphold it by publicly proclaiming that it "would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Putting aside that overturning a federal law hardly would be unprecedented and that Obamacare was not passed by "a strong majority," what is most distressing is that Obama disregarded the proper role of the United States Supreme Court — to determine whether or not Obamacare is constitutional based on the Constitution, not the margin by which a bill was passed or the popularity of that bill.

Then there was Obama's fundamental misrepresentation of judicial activism.

Obama declared:

"...I'd just remind conservative commentators that, for years, what we have heard is, the biggest problem on the bench was judicial activism, or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law."

"...[Obamacare] is a good example, and I'm pretty confident that this court will recognize that and not take that step." he said.

Upholding Obamacare even though it really is unconstitutional would be a perfect example of (liberal) judicial activism and declaring it unconstitutional would be upholding the Constitution by judicially restraining the President and the Congress.

Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions."

It would not suit his partisan political agenda, but Obama would do well to be schooled by Long, an ardent and articulate proponent of constitutional fidelity and the rule of law and opponent of legislating from the bench.

At least he should read Long's Bench Memo posted on June 27, 2009 at http://www.nationalreview.com/bench-memos/49837/ramesh-conservative-judicial-activism/wendy-long, in which Long rejected any judicial activism:

"...conservatives would certainly be guilty of 'judicial activism' if they engaged in it. But it's just very rare (nowadays) for 'conservatives' to do so — because they believe in fighting political battles in the proper (political) arena, win or lose. If you can provide a real current example of 'conservative judicial activism' — because the two you have provided do not qualify — I would readily agree that it is improper 'conservative judicial activism.' The economic substantive due process at work in Lochner v. New York was 'conservative judicial activism,' for example. But Justice Thomas's position on the Voting Rights Act does not qualify as 'judicial activism' or as any betrayal of originalism, nor does the legal argument for Frank Ricci. The text of the 14th Amendment says 'No person shall be denied equal protection of the laws.' The text of the 15th Amendment gives Congress enforcement power against racial discrimination in voting, not enforcement power in the absence of racial discrimination. And nothing in the history of the 14th Amendment undercuts the argument that a white or Latino firefighter is discriminated against when a promotion is denied to him after a non-discriminatory test, on the ground that no blacks could thereby be promoted. It is never 'activism' to faithfully interpret and apply the Constitution. If you are truly evaluating the text and history and principles of the Constitution (which never contradict each other, but where evidence is scanty in one area, it may be more plentiful in another; this is the opposite of inventing stuff out of thin air, applying one's own personal views, or invoking some evolving, enlightened global moral consensus), it isn't activism; it's the only correct way to apply the Constitution as an Article III judge. I want to bend over backwards to say you are right that 'conservative judicial activism' is possible, and that it's as bad a way for an Article III judge to behave as it is to engage in liberal judicial activism. I just want to come up with a better example, because your examples are wrong. And because any really good actual example is so elusive, it's proof that conservatives do not, as you imply, engage in anything like the judicial activism that liberals do. Just look at Ed Whelan's posts on this blog under 'This Day in Liberal Judicial Activism': could you, in a million years, construct a parallel continuing feature, 'This Day in Conservative Judicial Activism'? OK, 'On this day in 1905, a majority of the Supreme Court held that freedom of contract prevented New York from regulating the working hours of bakers....' The material just isn't there. Your examples do not cut it for the reasons stated, but I am happy to validate your hypothetical thesis with a hypothetical case of conservative judicial activism or two: Let's say that some hypothetical Supreme Court (because there is not even one vote for this position on the current Court) ruled that the Constitution prohibits any abortion at all, i.e. that the 5th and 14th Amendments affirmatively and absolutely protect the right to life of unborn human beings in this country from their moment of conception — i.e., the perfect judicial opposite of Roe v. Wade and Doe v. Bolton. Although this would be less of a constitutional and originalist stretch than were Roe and Do themselves, and although some serious and scholarly people make this argument that the pro-life position is protected by the existing Constitution..., I would understand if you said such an argument, or ruling, would represent 'conservative judicial activism.' Another example might be, if conservatives said, the Constitution (in its present form) enforces a regime of marriage limited to one man and one woman, and that if a state wants to legislate marriage among persons of the same sex, an unlimited number of persons of any sex, etc., states cannot do so. I can see where one might label this 'conservative judicial activism' — but, as we see, conservatives are not trying to do that, only to either (a) amend the Constitution properly, as the document itself provides, instead of illegitimately 'amending' it by judicial fiat, or (b) fight the battle for traditional marriage in the legislatures, where absent a proper constitutional amendment it belongs. That these are mere hypotheticals is the point: conservatives just aren't doing what liberals are doing in the judicial activism category. And if there were ever a moment when this point needs to be conveyed to the great majority of Americans whose instincts on this are so much sounder than Larry Tribe's, and Barack Obama's, and Ruth Bader Ginsburg's, and Sonia Sotomayor's, it is now. This is why your column was so heartbreaking. As one 'soccer mom' told me today, the arguments about the court seem like 'inside baseball' to her fellow Americans (the ones who are going to sustain or allow the collapse of self-government): 'They just think it's about liberal vs. conservative and whose ox is getting gored. They don't realize that this is about procedure and order and the rule of law, on the one hand, vs. chaos and power grabs on the other."

That's precisely what it is.

© Michael Gaynor

 

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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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