As I have suggested in previous blog posts, there is reason to believe that the current project of divining Obama’s judicial nomination preferences and proclivities is, at best, likely to miss important nuances and, at worst, may be largely baseless.
However, that has not stopped numerous very intelligent and capable people from weighing in on what Obama “thinks,” “feels,” “values,” and “wants.” In truth, for most of us, it is just too hard to resist! University of Chicago law professor David Strauss, for example, recently told the Washington Post that Obama believes that “[w]e shouldn’t be looking to the courts for salvation.”
Strauss’s statement certainly seems to align with reports that Obama would appoint a pragmatist and someone with a minimalist view of the judiciary’s role, but is it accurate?
When Obama opposed the nomination of Samuel Alito Jr., he did so on the grounds that Alito “consistently sides on behalf of the powerful against the powerless.” He opposed Janice Rogers Brown’s appointment to the U.S. Court of Appeals for the District of Columbia Circuit for similar reasons, voicing concern with her history of promoting powerful interests at the expense of the less fortunate (“It is social Darwinism . . . a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer.). More recently, Obama was emphatic in stating that “[t]he court has to stand up if nobody else will.”
This suggests to me that Obama believes that if we are poor, voiceless, and powerless, the courts are exactly where we should look for salvation. Indeed, they may be the only place that we can look. If we are wealthy and powerful, by contrast, the other branches of government offer potent protections for our interests and, thus, the court can (and ought to) confine itself to trimming around the edges.
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