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Obama Will Change Balance on Courts Quickly

By    |   Wednesday, 12 November 2008 05:47 PM

It’s a given that Barack Obama will change the balance on the courts to a liberal judicial outlook. What is surprising is how quickly he could do that.

Because Democrats dragged their heels on President Bush’s judicial nominations, 14 seats are open on appeals courts or will be by the end of January. Democratic nominees now are a majority on only one of the 13 federal appeals courts, the ultra-liberal U.S. Court of Appeals for the 9th Circuit in San Francisco. Within four years, Obama could name enough judges to give Democrats a majority on nine of the 13 appeals courts.

On the Supreme Court, five justices are older than 70. The first likely to retire is Justice John Paul Stevens, who is 88. Ruth Bader Ginsburg is 75. Justice David Souter, who will turn 70 next year, is known to be unhappy living in Washington. Assuming Obama is re-elected, Justices Antonin Scalia and Anthony Kennedy will be 80 by his second term.

Thus, Obama will be able to name several Supreme Court justices. Given that Democrats hold a majority of the Senate, Obama will have little trouble obtaining confirmation of his appointees. A simple majority of the Senate confirms judicial appointments.

Obama has said that, in selecting judges, he would look for candidates who show “empathy” for the weak and underprivileged. He voted against two of President Bush’s appointments to the Supreme Court, Chief Justice John Roberts and Justice Sam Alito, because they did not side often enough with the downtrodden and disenfranchised.

Obama wants judges to have a bias in favor of an entire class of individuals. Imagine the outcry if Bush had said he wants courts to side with the privileged.

But what really sends chills up conservatives’ spines is the president-elect’s statement on a Chicago radio station that he is “not optimistic about bringing about major redistributive change through the courts,” implying that he would like to change the courts so that they construct their own laws.

That raised a flag for Brad Berenson, who was associate counsel in the Bush White House and helped vet judicial appointments.

“Given his legal training and his background as a constitutional law professor, given what he’s said publicly about the kinds of judicial appointees he’ll be looking for, and given a very substantial majority of Democrats in the Senate, he’s going to be emboldened to try to please his base with very liberal appointments,” Berenson told Newsmax.

“During the campaign, when he was asked about what he would look for in a judge, the dominant theme of his comments was that he would look for a judge that would decide cases according to heart more than head, which suggests a substantive agenda in favor of helping certain favored or sympathetic groups in society, rather than a passion for finding judges who will neutrally apply the law, which was the animating principle for Bush judicial appointments,” said Berenson, who worked with Obama on the Harvard Law Review and then clerked for Justice Anthony Kennedy.

“My general expectation is that he will look for people of quality, but he will look for people of quality who have a substantive liberal agenda on the bench, and as long as he has a substantial majority in the Senate, he may well get such people confirmed,” Berenson said. “Like any president, he’s going to be in a position to substantially influence the character of a lot of important courts around the country and to do so fairly quickly. For example, the 4th Circuit, which has long been one of the more conservative courts in the country, could be tipped decisively in a liberal direction just through an initial round of appointments. That is something that could happen within a year or two of his taking office.”

Others agree with that summation.

“Obama will be quite liberal because he doesn’t want to take the chance of having a moderate nominee, any more than a Republican president wants to take the chance of a moderate nominee,” Ken Klukowski, a legal expert who consults for major conservative interest groups, told Newsmax. “If he appoints someone that votes in a way against what his party base would anticipate, on some issue of critical concern to the left, whether it’s gay marriage, abortion, the second amendment, whatever it is, he knows that the political fallout for him could be catastrophic.”

Indeed, Klukowski said Obama may move to increase the number of federal judges, giving him an opportunity to alter the balance even more.

“Citing the fact that judges are overworked, that there’s a very heavy case load, you could see the Democrats ram through a new statute creating new judicial seats that Obama could fill,” Klukowski said. “That’s what happened with Jimmy Carter in the 1970s with the 9th Circuit. It was Carter who expanded the Ninth Circuit to 27 or 28 seats and created a whole raft of vacancies, which were then filled with liberal judicial activists who then waited until there was another Democrat president, Bill Clinton, before they all resigned to get replaced. That’s why the 9th Circuit is as far to the left as it is.”

Ronald Kessler is chief Washington correspondent of Newsmax.com. View his previous reports and get his dispatches sent to you free via
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It’s a given that Barack Obama will change the balance on the courts to a liberal judicial outlook. What is surprising is how quickly he could do that. Because Democrats dragged their heels on President Bush’s judicial nominations, 14 seats are open on appeals courts or...
Wednesday, 12 November 2008 05:47 PM
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