Obama Judges versus the Constitution

Candidate Obama said he would appoint federal judges who would decide cases based on the identity of the parties — not the facts presented. And, he has returned the American Bar Association (ABA) to vet the judicial nominees at the same time a statistical study shows that the ABA is biased toward liberal candidates. Interestingly, President Obamas first nomination

The facts for this article, but not its legal conclusions, come from an article on the Law Blog of the Wall Street Journal on 18 March, 2009, concerning a study by two professors and one doctoral candidate that concluded that American Bar Association (ABA) recommendations were biased in favor of liberal nominees.

The study concludes that “nominees appointed by Democratic presidents are more likely to receive higher ABA ratings than nominees appointed by Republican presidents…The more conservative the nominee, the less likely he or she will receive a high ABA rating.”

These conclusions are not new. It was this kind of perceived bias that led President Bush, in 2000, to stop using advance recommendations from the ABA on all nominees. While it did not shut the ABA out from commenting on judicial nominees — it did remove its preferred status.

This new study changes an anecdotal conclusion into a mathematical one. And President Obama has now decided to resume using the ABA to vet the qualifications of his judicial nominees — in accord with his comments during the campaign when he stated that he wants justices who have “the empathy to recognize what it’s like to be a young teenage mom,” or to be gay, poor or black. (See http://www.cato.org/pub_display.php?pub_id=9687)

The well-known symbol of Justice is a woman holding scales in one hand and a sword in the other. She also wears a blindfold. The blindfold sybolizes that Justice will not decide the case on the basis of who the parties are – but will decide the merits of the case openly, honestly, and fairly. It appears that President Obama’s position is that judges SHOULD decide cases based on who the parties are. Thus, bias will not be accidental; it will be built in from the start.

The president’s first actual appointment is US District Judge David Hamilton of Indiana to the Seventh Circuit Court of Appeals. The White House has described him as having “empathy with the people.” Originally appointed to the bench by President Clinton, most commentary about him neglect to mention two facts which offer an insight into his political and judicial philosophies.

One — he is a former fundraiser for ACORN (Association for Community Organizations for Reform Now http://www.acorn.org/), and two — he is a former head of the Indiana ACLU. Interestingly, no major media source bothers to mention that ACORN probably has more indictments and more convictions for election corruption than any other political “community” group since New York’s Tammany Hall — which had more than two centuries to earn its hall of shame.

It is also notable that a fairly large number of Judge Hamiltons decisions have been reversed by the Seventh Circuit, some unanimously — this, incidentally is the same Circuit that Obama seeks to have him serve. (For a thorough, but still incomplete article about Hamiltons background, see the Baltimore Sun on 17 March, 2009, http://www.baltimoresun.com/news/nation/politics/bal-obama-judge0317,0,4283113.story)

In short, on the issue of judicial appointments President Obama has been entirely consistent, from candidate to elected official. He has said he would appoint judges who would decide cases backwards i.e., who is the preferred party and what is the preferred outcome? And to help achieve that goal he has welcomed back as a prime advisor the ABA, an organization shown to be slanted in the liberal direction.

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