Jeff Sessions (Win McNamee/Getty Images)

Judging the heart

Supreme Court | Obama wants empathy on the high court, but "people are not looking for Oprah to be the next justice," say conservatives

Issue: "Tiananmen massacre," June 6, 2009

Ever since news of Supreme Court Justice David Souter's retirement leaked, Team Obama and Team Conservative have gone to their respective corners to vet potential replacements. Once Souter's replacement is named, the bell will ring and both sides will come out fighting. But unlike the last two Supreme Court confirmation battles, conservatives are the underdog while Democrats have gained heavyweight status with control of both the White House and Senate. Democrats will circle to protect their first nomination in 15 years, and more than a dozen conservative groups have banded together to research 35 potential nominees in preparing their defense.

Whether the Obama pick is the nation's first Hispanic justice or its third woman, everyone agrees the selection will be a liberal, activist justice. And that is why-against long odds-conservatives are ready to push back. "Frankly, some of the people on his list have some major problems when it comes to legislating from the bench and applying the opinions of foreign judges to U.S. citizens," said Phillip Jauregui, president of Judicial Action Group, which has coordinated the joint conservative effort.

Already Judicial Confirmation Network has released online videos highlighting the controversial stances of finalists Solicitor General Elena Kagan and U.S. Appeals Court judges Sonia Sotomayor and Diane Wood. The Wood video reveals that she upheld federal racketeering charges against pro-life protestors and barred the use of campus facilities by Christian groups that refused to allow gay members. The Sotomayor video highlights her rejection of a reverse discrimination lawsuit filed by firefighters; they sued after officials threw out the results of a written promotion test in which blacks failed to qualify for promotions. The Kagan video shows how, as dean of Harvard's law school, she banned military recruiters from campus because the military does not admit homosexuals.

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"These are the records of people who follow their own personal feelings and their own personal political preferences rather than following the law," said Gary Marx, the executive director of Judicial Confirmation Network.

This isn't a surprise given Obama's record. In 2005 the freshman senator opposed the nomination of Chief Justice John Roberts, touting "the depth and breadth of one's empathy. In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

Conservatives argue that such feelings undermine the traditional view of a blindfolded judge weighing legal claims based on the U.S. Constitution. Roberts, in his confirmation hearing, compared judges to baseball umpires impartially calling balls and strikes based on the law-an analogy Obama criticized. "It's becoming known as the Obama standard," said Tom McClusky with the Family Research Council. "But people are not looking for Oprah to be the next justice."

Recent surveys suggest McClusky is right. In a CNN poll, 72 percent of respondents favored a conservative or moderate judge over a liberal one. A Fox News poll revealed that 60 percent believed a justice should follow a strict interpretation of the Constitution.

These numbers give conservatives hope that a Democratic Senate may not rubber-stamp Obama's nominee. "Moderate Democrats want to be reelected more than they want to help President Obama," said Jauregui.

McClusky hopes the upcoming debate educates the public because Obama could make two or three more Supreme Court nominations, and his current slate of names could be tapped for lower court vacancies. That's why conservatives are counting on Sen. Jeff Sessions, R-Ala. Tapped to replace defected Sen. Arlen Specter as the top Republican on the Senate Judiciary Committee, Sessions is pro-life and against same-sex marriage, and 20 years ago he saw his own nomination to become a U.S. district court judge go up in smoke when the Judiciary Committee, including Specter, rejected him after some Democrats accused him of being racist. His choice is a clear sign that the GOP aims to play tough with Obama's pick.

Judicial slate

Diane Wood
7th U.S. Circuit Court of Appeals
Michigan Governor
Jennifer Granholm
Homeland Security Secretary
Janet Napolitano
Kim Wardlaw
9th U.S. Circuit Court of Appeals
Solicitor General
Elena Kagan
Ruben Castillo
U.S. District Court for Northern Illinois
Kathleen Sullivan
Stanford University
Sonia Sotomayor
2nd U.S. Circuit Court of Appeals
Merrick Garland
D.C. Circuit Court of Appeals

Edward Lee Pitts
Edward Lee Pitts

Lee teaches journalism at Dordt College in Sioux Center, Iowa, and is the associate dean of the World Journalism Institute.


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