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Obama-Biden Judicial Litmus Test Exposed,
But Who Cares?

Mario Diaz, Esq.
10/08/2008
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To hear Senator and vice-presidential candidate Joe Biden (D-Delaware) make the claim was surprising, but not nearly as shocking as the lack of attention paid to his remarks.  We heard about moderator Gwen Ifill’s book on Obama, we heard about vice-presidential candidate Sarah Palin’s wit and blunders, we heard about Biden’s experience, but nothing about this.  At the end of the recent vice-presidential debate, we heard a very interesting question asked of the candidates:

 

Ifill: Can you think of a single issue, policy issue, in which you were forced to change a long-held view in order to accommodate changed circumstances?

 

Sen. Biden: Yes, I can.  When I got to the United States Senate and went on the Judiciary Committee as a young lawyer, I was of the view, and had been trained in the view, that the only thing that mattered was whether or not a nominee appointed, suggested by the president, had a judicial temperament, had not committed a crime of moral turpitude, and was — had been a good student.  And it didn’t take me long — it was hard to change, but it didn’t take me long, but it took about five years for me to realize that the ideology of that judge makes a big difference.

 

A judge’s ideology is what drives Sen. Biden’s decision on whether to vote for a judicial nominee?  Isn’t a judge supposed to follow the law as enacted by the people’s representatives, even when he doesn’t agree ideologically with the policy behind that law? 

 

If judges are to abide by the Constitution and the laws enacted by the legislature, then it doesn’t really matter if they are Republicans or Democrats, whether they favor higher taxes, or drilling, or legalizing drugs. 

 

But apparently the law is not a very big deal for Sen. Biden.  He looked at that when he was young and inexperienced.  Now Sen. Biden knows that a judge must comport with his own personal ideology.

 

Sen. Biden’s view is so contemptible that not even his running-mate has had the audacity to say it out loud.  In fact, in an e-mail response to one of the many Illinois members of Concerned Women for America, Senator and presidential candidate Barack Obama (D-Illinois) said, “While I have no litmus test for judges, my bottom line is confidence that a judicial nominee will respect the constitutionally protected rights of all Americans and resist the temptation to substitute personal ideology for legal reasoning” (Emphasis added).

 

If a judge is not to substitute his ideology for legal reasoning, why is his ideology so important?  Then again, remember that Obama was elected to the Senate in 2004, so he has not had the full five years to “evolve” as Sen. Biden did.  And although Sen. Obama resists at first sight Sen. Biden’s revealing ideological litmus test, he shamelessly employs the same tactics even while denouncing them.

 

In the same e-mail to our CWA member he explained:

 

I believe, however, that a judicial nominee with a history of undermining settled law like Roe v. Wade deserves greater scrutiny.  Nominees to the federal bench who are out-of-step with mainstream America should not be confirmed.  That is why in the past I have opposed the nominations of Supreme Court Justices Roberts and Alito…

 

Indeed. 

 

Sen. Obama does not want to use ideology, but he wants to know if the nominee is “out-of-step with the mainstream.”  So maybe we should inquire into a nominee’s musical tastes.  You know, are they keeping up with the times?  Maybe senators should be quizzed on America’s favorite TV shows: “Mr. Nominee, are you familiar with Dr. Meredith Grey and Dr. Derek Shepherd?”  Or maybe we should look at the way they dress.

 

It’s actually ironic that Sen. Obama would claim to have no litmus test and then mention his “mainstream test” and his reverence of Roe v. Wade in reference to his “no” vote for Chief Justice John Roberts.

 

In his Senate testimony, then-Supreme Court nominee John Roberts acknowledged that, at the Appellate Court level, he had an obligation to respect the precedents established by the Supreme Court, including the controversial decisions regarding abortion.  He specifically said that Roe v. Wade was the settled law of the land and that there was nothing in his personal views that would prevent him from fully and faithfully applying that precedent.

 

Still, something in Sen. Obama’s ideology did not permit him to vote for an obviously well-qualified nominee by any reasonable standard.  His Senate statement reflects his internal dilemma:

 

Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his résumé, his conduct during the hearings, and a conversation I had with him yesterday afternoon.

 

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge.  He is humble, he is personally decent, and he appears to be respectful of different points of view.  It is absolutely clear to me that Judge Roberts truly loves the law.  He couldn’t have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts (Emphasis added).

 

But Sen. Obama did not vote for the Chief Justice.  He was actually worried about something more than his qualifications.  Dare I say, he was worried about his “ideology.”  Sen. Obama’s actions seem to suggest that the law will only get you so far, and then a judge must determine cases “on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”

 

Scary.

 

Sen. Obama voted against Chief Justice Roberts.  He voted against Justice Samuel Alito and Leslie Southwick.  And he told our members he would not vote in favor of Richard Honaker because of his pro-life ideology.  

 

Call it litmus test, an ideological test, a mainstream test, or call it what you want, but if it is up to Sen. Obama and Sen. Biden, judicial nominees must share the two senators’ ideology or they are not “fit” to serve our country.

 

I tend to think that’s a big deal, but maybe it’s just me.



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Concerned Women for America
Legislative Action Committee
1015 Fifteenth St. N.W., Suite 1100
Washington, D.C. 20005
Phone: (202) 488-7000
Fax: (202) 488-0806
 
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