Why I Hope Obama Wasn’t Telling The Truth, The Whole Truth, And Nothing But The Truth

Perhaps the first and foremost concern I have for what the President of the United States does is what kind of people the President will appoint to the Supreme Court. That has the most impact on my day-to-day and professional life within the range of things that a President has functional discretion to do in the first place.

In the most recent Presidential debate, we learned the following about what President Obama says he will think about when considering appointments to the High Court:

Well, I think it’s true that we shouldn’t apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance. Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I’ll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Go back and take a look at the highlighted portion of that quote. Then recall that Obama is a former professor of Constitutional Law at one of America’s most prestigious law schools.

To some extent, this is campaign rhetoric rather than a real description of a governing philosophy, so perhaps we should take it with a grain of salt. This is not an unreasonable assumption, given that he seems to be speaking out of both sides of his mouth concerning whether agreeing with Roe v. Wade is a litmus test or not. But if so, then we are also buying in to the idea that it’s okay for a guy in Obama’s position to lie about his priorities. So I prefer to take him at his word, because he is articulating a few interesting thoughts about the way judges should approach their task and despite the fact that we should view his philosophy here through a political lens, we are still looking at something that exists beyond that lens. Here are three things that Obama seems to be saying about the judges he would look for:

1. Certain kinds of individual rights are beyond the realm of political control.
2. Privacy is a right, although not explicitly enumerated, which the Constitution protects.
3. “Fairness” means using the law to “level the playing field” with respect to economic power of litigants.

As to the first two propositions, I find little with which to disagree. Indeed, as to the first, I think that ought to be something that all but the most short-sighted of ultra-majoritarians ought to find non-controversial. Political speech like flag-burning is intensely unpopular but deserves Constitutional protection. Indeed, it deserves Constitutional protection precisely because it is so unpopular.

Privacy is only controversial as a concept, so far as I can tell, because it is one of the intellectual underpinnings of the abortion right articulated in Roe v. Wade. But it is something that is valued and cherished, in one form or another, by all Americans. And it is entirely appropriate that it be considered a right in a broad term — we might argue about whether abortion and privacy are really the same thing or one is a subgrouping within the other. But the idea that we have the ability to keep certain facts about ourselves from public scrutiny is not one that a lot of people, even the most conservative, anti-abortion folks out there, will let go of easily.

But it’s that last point that really attracts my eye. It dovetails into the “spread the wealth” trope being bruited about with respect to the whole Joe the Plumber thing — just as Obama would use the power to tax and subsidize to level the economic playing field between rich and poor (a little bit moreso than is being done now), he would have the judges he appoints use the court to favor the interests of the less powerful litigants suffering from economic pressure.

Obama was speaking most pointedly about Ledbetter v. Goodyear, in which the Supreme Court narrowly applied the statute of limitations to a civil suit under the Equal Pay Act, and declining to toll or relate back that statute on a “delayed discovery” theory. (Ledbetter discovered only at the very end of her career at Goodyear that she was being paid less than her male counterparts, but the Court did not allow her to recover her entire career’s worth of unequal wages.) As written the statute has a 180-day limitations period.

Now, I agree that the result in Ledbetter sucked for the plaintiff, and the dissent has a very good point that pay inequities happen incrementally over time — and are often not discovered until very late in the game — and therefore are fundamentally different than other kinds of adverse employment actions like termination.

But Obama’s criticism of the case is focusing on the particular result of that case rather than either the method used to reach that result, or the judicial priorities that necessitated it. I suggest that it is more important to reach a well-reasoned result that fits within the scope of the Constitution than to create a politically palatable result in each case. Indeed, good common law sometimes requires reaching a politically distasteful result — and letting the political process play out in response to it.

We had that with the flag-burning case. Ultimately, enough people realized that that as really disgusting as flag-burning is, it is political speech and once we start censoring it, we’ve taken a step down a very steep and slippery slope.

We have that right now with the same-sex marriage case in California. Right now, it’s too close to call one way or the other as to the Constitutional amendment by initiative that would overrule the Marriage Cases. The losing side of that initiative — and it might be the one I favor, or it might be the one I disapprove of — will have to live with the result.

See, “justice” and “fairness” are very difficult concepts to really articulate in a few words. Most of the time, laypeople and especially litigants use those phrases to mean “I win,” or at least “the court sees things my way and is sympathetic to my concerns.” But obviously, every litigant wants to win, and every litigant, whether rich or poor, powerful or humble, corporate or individual, plaintiff or defendant, sees their own case in a light that is favorable to themselves. So everyone goes in to court and thinks that “justice” and “fairness” are on their side.”

If Obama was really describing his priorities for what judges should do, in a very up-front and direct way, he was describing the opposite of “fair.” Fairness and justice would seem to require that a lawsuit be resolved on its merits, not on the identity of the parties, or their relative wealth or power, or their objective economic standing. Lilly Ledbetter either has a strong case or not. The fact that she is economically struggling (or not) has nothing to do with whether her case should win or not. The fact that Goodyear is a big corporation has nothing to do with whether it should win or not. But if you take Obama at his word, then Ledbetter should win because she is not rich and Goodyear is. It is just as objectionable and obviously wrong for a judge to always rule in favor of a poor litigant as it would be for the judge to always rule in favor of a rich one.

This cannot be what Obama was trying to get at, in all seriousness.

Simply saying that you want a judge to be “fair” and “just” is really an almost meaningless sort of phrase. Of course a judge should be “fair” and “just.” The judge should also be not corrupt or corruptible. The judge should be intelligent. The judge should be patient (especially judges dealing with litigants and witnesses at the trial level). The judge should be open-minded and possess critical thinking skills. The judge should have a breadth of personal experience. The judge should be able to write opinions, sort out relevant from irrelevant evidence, and use logic with skill and ease. The judge should possess an advanced enough education to be comfortable with legal disputes — in almost every case, meaning that the judge should possess a juris doctorate from a respectable educational institution.

These things should kind of go without saying.

So I suggest that there are some other kinds of priorities one might have for judges, meaningful sorts of priorities.

A. Upholding the law as written and interpreting the law to conform to its intent when it is ambiguous, or in the alternative trying to understand the policy goals of the law and to craft rulings in harmony with those.
B. Possessing a depth of scholarly knowledge about the law, so as to understand how to apply the law to the situations the judge is confronted with.
C. An ability to produce clear, predictable rules for other courts to follow.
D. The ability to craft rules that will be fair and appropriate in a variety of cases rather than only the specific case before the court that day.
E. Asserting the Court’s role in the governmental process within the proper separation of powers, or in the alternative being deferential to the other branches of government.
F. Taking an expansive (or restrictive) view of individual rights.
G. Having the courage to make a ruling that the judge believes is right and fair despite the political fallout.

A good judge should be, in my mind, independent and courageous enough to make a tough call. We should understand that necessarily, at least one-half (if not more) of all litigants will walk away from a final ruling in a case unhappy. So it can’t be about the result in a particular case.

Obama is more than smart enough to know this. Obama is a very smart man. He has the benefit of some of the best high-level education available in the United States, which still offers the best collegiate and post-collegiate education in the world. (Yeah, that’s right, I’ll stack UCLA or Yale up against Oxford or the Sorbonne any day.) And I have to think that he knows all of what I’ve just written about, at both a base and a sophisticated level. His statement above is that of a politician, not that of a law professor.

So I hope that Obama’s statement is significantly warped from what is really going on in his head. Because if he really only wants “fair” judges, and his measure of their fairness is their propensity to rule in favor of economically disadvantaged parties, then there is no fairness at all, only an economically outcome-determinative bench that becomes a political football. We Americans have a right to expect more than that from our courts. And Obama, of all people, should know that.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. Yeah, not his best statement. I don’t know about strict construction but “make people happy and give them ponies” probably isn’t the best answer, either.

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