The best speech I found was available at Obama's official Senate website. In the following speech, Obama laid out his case for voting against the nomination of Chief Justice John Roberts (who was, you'll remember, filling the seat of Chief Justice William Rehnquist).
http://obama.senate.gov/press/050922-remarks_of_sena/
First off, praise:
[John Roberts] couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system.
The Supreme Court could stand to have a couple more liberal appointments on it. Although I am conservative, an ideologically-balanced Supreme Court, with a diverse array of perspectives and opinions, leads to a better discourse and better decisions.
With that said, I do think that certain principles--namely, reverence for the laws and Constitution as they are written--trump others. Indeed, one can share those principles and come at problems from any number of ideological bents.
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
See, this, I do not accept. "Empathy" is for legislatures and executives. Judiciaries should be for impartality above all, not empathy. Empathy smacks of favoritism. The law shows no favorites.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
Essentially, I read this as Barack Obama suggesting the following: some of the more contentious issues facing the Court should be decided based on the personal ideologies of the justices--and that ideology should be of a liberal bent. Notice the issues he selected: affirmative action, abortion decisions, a heavy-handed interpretation of the commerce clause. These are all positions advocated by a scholar or thinker of the left. They are also reasonably hot button issues. Obama is arguing that the Court should decide these hot button issues more personally than legally. He espounds on this next:
I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.
I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.
I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
These issues that Obama raises are best addressed by laws. Not by interpreters of the law. Obama's perspective on the role of the Court is a far more wide-ranging one than that of his Democratic predecessor, John Kerry. Here's what Kerry had to say at the second presidential debate in '04:
I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you're reading their decision, their opinion, you can't tell if it's written by a man or woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you're reading a good judicial decision.
That's definitely not how Obama would paint his decisions about nominees. And hell, it's not how he's painted them in this campaign. Here's what he said at a 2007 Planned Parenthood rally:
We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.
With Obama, it's not about how the law is written. It's about how the law should be.
This is a valid perspective, I think; Obama believes in judicial activism, and he wouldn't hide it under the label of "strict constructionism" (which many conservatives do, believing that "strict constructionism" in theory is "conservative judicial activism" in practice).
With an Obama presidency, the bigger issue isn't with the Supreme Court (where he will be replacing two liberal justices before anything else). It's with the lower courts, federal courts, appellate courts, etc. This is a different type of judge you would see at all levels of the federal government.
On a related note, Rasmussen ran an interesting poll a couple of weeks back. The labels are a bit misleading at points, but I think that the results are interesting anyway.
While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.
Let's break that down into a table:
McCain Obama
"Constitution" 82% 29%
"Fairness" 11% 49%
These differences are pretty stark. A lot of this is based on the "talking points" of the various sides, but part of it is based in what I would deem actual, philosophical differences between the two candidates and their supporters.
This is another iteration of the process/outcome debate that shapes the American political discourse, and that has forever. Check out Allen Guelzo's Lincoln and Douglas: The Debates that Defined America for another iteration of that debate.
And, to get my own views out there, I think there are times where outcomes matter more (see: slavery), but I think that process and law must be revered in a democratic republic.
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