This column originally appeared on National Review Online on November 1, 2008.
Barack Obama’s shocking statements from 2001 about the U.S. Supreme Court offer a deeply disturbing insight into what he hopes to achieve through remaking our highest court. Taken with what is currently at stake in the Court, it paints a picture that should cost him millions of votes on Election Day.
In 2001, Obama gave an interview to WBEZ radio in Chicago. He regretted the Supreme Court did not order the “redistribution of wealth” to create “economic justice” in America. He lamented he could not be “optimistic” about using the courts to achieve “major redistributive change.”
This is extraordinary. In three presidential debates, only one question was about the U.S. Supreme Court. This is a major issue that could still shape the outcome of this election, and voters deserve to know what they weren’t told in the debates.
The sole Supreme Court question was a question on abortion. There are many issues facing the country in our nation’s courts, and it’s neither fair nor honest to define America’s courts solely in terms of abortion.
Obama has promised to model his Supreme Court nominees off Ruth Bader Ginsburg, who voted against what the majority of Americans support in each of the issues in play in our Supreme Court.
This year a 5-4 Court decided that all the rights that Americans have when charged with a crime should be extended to enemies we capture on foreign battlefields and hold overseas. These rights include the presumption of innocence, prosecutors needing to prove every part of a crime beyond a reasonable doubt, and restrictive rules governing what evidence is admissible. The idea of trying to collect evidence on a battlefield or put together an airtight case with the sort of rules we use domestically is ridiculous. You cannot prosecute a war that way.
The same 5-4 Court voted the death penalty cannot be used for violent child rapists. Those five justices also decided in 2003 that governments can seize your home at any time to demolish it and build strip malls on what was your land to generate more tax revenue.
Other issues are at stake, and only went the way the American people wanted by a single vote. Four of those five justices dissented in the Second Amendment case, writing that there is no constitutional right to own a firearm, and that the government can ban you from owning a gun even in your own home. Those same justices voted to strike down the federal law banning partial-birth abortion, a barbaric procedure opposed by over 80 percent of Americans.
In all of these issues, judicial conservatives were on the side of the vast majority of the people. On all of these issues, judicial activists were enacting changes to our society that the American people rejected at the ballot box.
John McCain has made it clear that he will appoint judges to our courts who will strictly adhere to our Constitution and laws as written, and understand that it abuses the judicial power to inject their personal beliefs into a case. He supported Roberts and Alito for the Supreme Court as such judges, and pledges to appoint such fine legal minds to the bench.
Obama pledged that he will instead appoint judges who will stand up for what they think is right when they decide the law is wrong. He opposed Roberts and Alito for that reason. He said that he wants judges who will insert their personal preferences into the law, based on “empathy.”
That’s a recipe for disaster. If judges can rewrite the law anytime they think it’s wrong, then judges can do whatever they want. We the People make the laws. We adopt a Constitution, and can amend it when necessary. We elect those who will govern us. They answer to us.
But judges do not answer to us. They are nominated by the president, and serve for life. Once on the bench, they can do anything they want. We therefore need judges that will faithfully apply the law that We the People make through our elected leaders, not invent new laws according to their personal preferences.
Now we learn that Obama even believes the Supreme Court should order the redistribution of income to enact whatever these unelected, unaccountable judges decide is “economic justice.” This betrays a radical big-government philosophy like this country has never seen, where courts could declare that welfare, health care, and housing are constitutional rights, funded with taxpayer money.
This is Obama’s vision for our nation’s courts. The American people should reject that, and can do so on November 4.
— Ken Blackwell is a senior fellow at the American Civil Rights Union, and Ken Klukowski is a senior legal analyst for the American Civil Rights Union.