(CNSNews.com) – For Democratic presidential candidate Barack Obama, Supreme Court justices should champion the weak against the strong.
It’s a view of the Supreme Court that divides the legal community.
Obama outlined his views on justices in the speeches he gave on the Senate floor in opposition to the confirmations of Chief Justice John G. Roberts and Justice Samuel A. Alito Jr.
In both speeches, the Illinois Democrat chastised the nominees not for their positions on specific constitutional issues or matters of law but for what he perceived as too often siding with the strong instead of the weak. He chargied Roberts, for example, with being dismissive of claims of racial and gender discrimination and criticized Alito for making a habit out of siding with government and corporations against plaintiffs and workers.
In a floor speech on Sept. 22, 2005, Obama said of Roberts “he has far more often used his considerable skills on behalf of the strong in opposition to the weak,” according to the Congressional Record. This alleged bias, Obama said, was why he voted against Roberts’ confirmation.
Obama also accused Roberts of being “dismissive of efforts to eradicate the effects of racial discrimination in our political process,” and that he “seemed dismissive of concerns that it is harder to make it in this world and in this economy when you are woman rather than a man.”
On Jan. 26, 2006, Obama said of then-Judge Alito “when you look at his record, when it comes to his understanding of the Constitution, I found that in almost every case he consistently sides on behalf of the powerful against the powerless.” Obama cited this finding as a reason to oppose Alito’s confirmation.
Obama accused Alito of siding with employers over employees. “If there is a case involving an employer and an employee," said Obama, "Judge Alito will rule in favor of the employer. If there is a claim between prosecutors and defendants, then he will rule in favor of the state.”
Obama’s comments reflect a broader philosophy that would turn the Supreme Court into a liberal, activist body that would be used for social change, according to one prominent Washington legal scholar.
“He’s talking about the Court being a liberal activist body, a tool for social change,” said Robert Alt, deputy director of the Center for Legal and Judicial Studies at The Heritage Foundation, a conservative think-tank.
“It’s contrary to the fundamental principle of justice in this country,” Alt told CNSNews.com. He said Obama’s philosophy contradicts “principles that have guided our appointment and confirmation of judges for well over 200 years.”
Nan Aron, president of the liberal Alliance for Justice, disagreed, saying that Supreme Court justices and judges needed to have an understanding of how the law affects ordinary people.
“Three criteria for consideration for a judgeship (are), honesty, commitment to the Constitution, and an excellent record in the law,” Aron said, adding that judges should “understand how the law affects everyday people.”
But deciding who is powerless and who is powerful isn’t the question, says Alt. Instead, justices should judge cases based on which side presents the more compelling legal argument, regardless of who the plaintiff is.
“The judges and the courts should not be playing favorites,” he said. “They shouldn’t be paying attention to who it is who’s making the arguments, they should be deciding who has the better legal argument.”
Aron, however, said that personal feelings should play a role in deciding cases.
“I think many precedents have certainly taken into account empathy and compassion. President Clinton talked about the importance of judges who were compassionate, and other presidents have as well,” she added.
This emotional consideration is necessary, she said, because the courts are the only avenue available for ordinary people to have their concerns addressed.
“Ordinary people,” Aron said, “really only have the courts as a forum to resolve their problems. After all, ordinary people, when faced with a problem, have difficulty getting through to a governor or a president, to a state legislature or Congress and find that the only forum available to them is the judiciary. Therefore, many presidents have regarded compassion as an ingredient in what constitutes a great judge.”
Alt, meanwhile, said subjective qualifications “are an homage to an outcomes-based approach, not one that seeks to apply the laws equally to parties who come before the court.”
He added: “It’s not the court’s job to show empathy beyond what Congress showed in enacting the statute.”