Scouring Obama’s Past for Clues on Judiciary
By CHARLIE SAVAGE
May 10, 2009
WASHINGTON — As a freshman senator, Barack Obama accused one of President George W. Bush’s judicial nominees of changing her approach from case to case to ensure outcomes favorable to powerful parties, like property owners. That one-sided record, he said, showed a mission of “not blind justice, but political activism.”
But in another floor speech soon afterward, Mr. Obama seemed to emphasize a different ideal than blind justice. Judges should “recognize who the weak are and who the strong are in our society,” he said, because hard cases will turn on factors like “the depth and breadth of one’s empathy.”
Today, as President Obama prepares to select a Supreme Court nominee to replace Justice David H. Souter, who is retiring, scholars and activists are confronting such contradictions as they scour his brief senatorial record for clues to his judicial philosophy.
As a constitutional law teacher, Mr. Obama gained a reputation as a pragmatist who sometimes challenged liberal orthodoxies. But as a senator who came to Washington in 2005 already being mentioned as a potential Democratic presidential candidate, he assembled a nearly uniformly liberal voting record on judges.
In a chamber with 44 Democrats, for example, he was one of 22 senators to vote against confirming John G. Roberts Jr. as chief justice and one of 25 to go along with an attempt to block a vote on Justice Samuel A. Alito Jr.
Mr. Obama’s voting record suggests a more ideological approach to the courts than he has portrayed, as well as a keen awareness that votes for Bush nominees considered too conservative by liberal groups could become fodder for an attack ad against him in a Democratic presidential primary, where the party’s liberal base would hold particular sway.
Sheldon Goldman, a political science professor at the University of Massachusetts, Amherst, who studies judicial selection, said, “We must never forget that Barack Obama is a politician.” His Supreme Court pick, Mr. Goldman said, may shed light on how to interpret his senatorial record.
“If he picks someone with a judicial track record that is in accord with a more liberal judicial and political philosophy, then I think in retrospect we’ll see that yes, that was very important to him and it’s very consistent with his behavior as a senator,” Mr. Goldman said.
Mr. Obama, who became a senator in January 2005 and declared his presidential candidacy two years later, did not play a leading role in fighting Mr. Bush’s nominees. But as a former law instructor, he was deeply engaged in preparing for those votes, said Michael Strautmanis, who was Mr. Obama’s Senate counsel and now works in the White House.
“He was not on the Judiciary Committee and he was a freshman senator, so he could have given it scant attention,” Mr. Strautmanis said. “But he went through a pretty aggressive, intensive process of having staff do research, doing his own research, crafting floor statements.”
And liberal group leaders said that when they visited Mr. Obama to discuss confirmations, he asked unusually probing questions.
“Sometimes it felt like he was trying to challenge our assumptions,” said Nan Aron of the Alliance for Justice. “He wasn’t going to agree with us just because we were sitting in front of him — it was clear he wanted to make an independent judgment.”
Mr. Obama would give them little cause for complaint.
In May 2005, when seven Democrats outraged liberal groups by making a deal to end filibusters against controversial appeals court nominees, Mr. Obama chose not to join that so-called Gang of 14.
And as nominees opposed by liberal groups reached the floor, Mr. Obama was among the Democrats most likely to vote nay. He voted against Janice Rogers Brown, Jerome Holmes, Brett Kavanaugh, Priscilla Owen, William H. Pryor Jr. and Leslie Southwick, whom he was the first senator to oppose.
Mr. Obama cast just one vote in favor of a Bush appellate nominee opposed by other Democratic senators: Thomas Griffith, a former Senate legal counsel who was opposed by some women’s groups and had practiced law for several years without a valid license.
Mr. Obama also broke ranks by voting to bring the nominations of Ms. Owen and Mr. Kavanaugh to the floor, although by then the Gang of 14 had reduced filibusters to symbolic protests.
But soon after the filibuster standoff faded, Mr. Bush nominated Mr. Roberts to the Supreme Court. His intellect and demeanor won rave reviews, and the ranking Democrat on the Judiciary Committee, Senator Patrick J. Leahy of Vermont, endorsed confirming him. Mr. Obama said he was “sorely tempted” to do likewise.
But liberal groups were urging Democrats to put up a fight. And Mr. Obama’s chief of staff, Pete Rouse, cautioned him to consider how a vote to confirm Mr. Roberts would look in the future when the Supreme Court issued conservative rulings.
Mr. Obama voted against Mr. Roberts. In explaining his vote, he said that in cases where the law was not clear — he mentioned affirmative action, abortion, the scope of Congressional power and workplace accommodations for disabled people — judges needed “empathy” for the powerless.
But even as Mr. Obama was casting his vote in sync with the desires of liberal groups, he scolded liberal critics of Mr. Leahy for having an “unbending, dogmatic approach to judicial confirmation” and told liberal bloggers to focus on winning elections if they wanted “judges that are sensitive to issues of social justice.”
He also told them that calls for a filibuster attempt against Mr. Roberts were “quixotic” and a bad idea. Yet in January 2006, when other Democrats started a filibuster attempt against Mr. Alito, Mr. Obama joined it — as did other potential presidential candidates.
Conservatives scrutinizing Mr. Obama’s Senate years in preparation for the coming confirmation fight have focused on his talk of judicial “empathy,” accusing him of idealizing results-oriented judges who reflexively side with disadvantaged parties instead of delivering blind justice — a mirror image of his critiques of Ms. Brown and Mr. Alito.
Senator Orrin G. Hatch, Republican of Utah, for example, called empathy a “code” for liberal activism, in contrast to a judge who is impartially “fair to the rich, the poor, the weak, the strong” alike.
But when Mr. Obama recently spoke about the coming vacancy, he did not retreat from his senatorial call for judges with not only intelligence and respect for the rule of law, but also “empathy.”
“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book,” he said. “It is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”