Interview with CNN
May 8, 2008
"Well, you know, I think actually Justice Breyer, Justice Ginsburg are very sensible judges.
I think that Justice Souter, who was a Republican appointee, is a sensible judge. What you're looking for is somebody who is going to apply the law where it's clear. Now, there's going to be those 5 percent of cases or 1 percent of cases where the law isn't clear. And the judge then has to bring in his or her own perspectives, his ethics, his or her moral bearings.
And, in those circumstances, what I do want is a judge who's sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being — from being dealt with sometimes unfairly, that the courts become a refuge for judges.
That's been its historic role. That was its role in Brown vs. Board of Education. I think a judge who is unsympathetic to the fact that, in some cases, we have got to make sure that civil rights are protected, that we have got to make sure that civil liberties are protected, because, oftentimes, there's pressures that are placed on politicians to want to set civil liberties aside, especially at a time when we have had terrorist attacks, making sure that we maintain our separation of powers, so that we don't have a president who is taking over more and more power.
I think those are all criteria by which I would judge whether or not this is a good appointee."
News Report
March 3, 2008
Mr. Obama addressed the traits he would look for in a Supreme Court justice, suggesting he might leaven legal scholarship with practical political experience. He held up Earl Warren, a former governor of California and the former chief justice, as an exemplar.
Mr. Warren, he said, had had the wisdom to recognize that segregation was wrong less because of precise sociological effects and more so because it was immoral and stigmatized blacks.
"I want people on the bench who have enough empathy, enough feeling, for what ordinary people are going through," Mr. Obama said.
Obama Statement on the Confirmation of Leslie Southwick
Wednesday, October 24, 2007
"The American people deserve a court system that upholds civil rights and the Constitution. Unfortunately, this Administration has placed partisanship and rigid ideology ahead of our most basic rights. Leslie Southwick's nomination is the latest example of this dangerous trend, and I am extremely disappointed in the Senate's decision to approve this nomination.
"As a Mississippi state court judge, Southwick has shown hostility toward civil rights and a disregard for equal rights for minorities, women, gays and lesbians. During his hearing before the Senate, Southwick could not find one case -- in his 7,000 opinions -- in which he sided with a civil rights plaintiff in a non-unanimous verdict.
From the Jena 6 to the recent Roberts/Alito court ruling on school integration to this confirmation, now more than ever we need to restore integrity and a commitment to civil rights in the courts. I strongly oppose this nomination, and will fight any other Bush nominations that threaten the very basis of our freedom and democracy."
Obama Statement on the Nomination of Judge Southwick for the U.S. Appeals Court
Monday, July 23, 2007
"The nation has just witnessed how quickly settled law can change when activist judges are confirmed. In decisions covering employment discrimination to school integration, the Roberts-Alito Supreme Court has turned back the clock on decades of hard-fought civil rights progress. Judge Southwick's answers to the Senate Judiciary Committee failed to excuse his disappointing record on cases involving consumers, employees, racial minorities, women and gays and lesbians. After reviewing his 7,000 opinions, Judge Southwick could not find one case in which he sided with a civil rights plaintiff in a non-unanimous verdict. I urge the President to nominate a jurist with the demonstrated capacity to provide all Americans with a fair hearing."
News Report
July 18, 2007
"There is nothing wrong in voting against nominees who don't share a broader vision of what the Constitution is about.
The Constitution can be interpreted in so many ways, and one way is a cramped and narrow way in which the Constitution and the courts essentially become rubber stamps for the powerful in society. And then there is another vision of the court that says that the courts are the refuge of the powerless because often times they may lose in the democratic back and forth; they may be locked out, prevented from fully participating in the democratic process."
Asked later how he would determine the views of a judge, Obama said, "you get a pretty good sense from someone's writings, someone's body of work what their judicial philosophy is."
Obama packs 'em in, riffs on Iraq, Alito
Tuesday, January 31, 2006
Chicago Tribune
Before taking questions, Obama reiterated his plan to support an unsuccessful effort Monday by some Democrats to mount a filibuster in an effort to block a vote on Alito's confirmation to the high court.
Obama cautioned conservatives as well as liberals that supporting Alito's nomination would compromise civil liberties. He argued that Alito would not question President Bush's policies that allow the government to eavesdrop on private phone conversations under the guise of a national security.
But Obama also noted that a filibuster would not be needed if Democrats regained control of Congress and the White House.
"At some point, the filibuster exhausts itself, and if we don't win elections, you're not going to get the judges you want," Obama said.
Floor Statement of Senator Barack Obama on the Confirmation of Judge Samuel Alito, Jr.
Thursday, January 26, 2006
"As we all know, there's been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I'm deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.
But when you look at his record -- when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights.
If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state. He's rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He's refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He's overturned a jury verdict that found a company liable for being a monopoly when it had over 90% of the market share at the time.
It's not just his decisions in these individual cases that give me pause -- it's that decisions like these are the rule for Samuel Alito, not the exception.
When it comes to how checks and balances in our system are supposed to operate -- the balance of power between the Executive Branch, Congress, and the Judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either Congressional acts or the check of the Judiciary. He believes in the overarching power of the President to engage in whatever the President deems to be appropriate policy. As a consequence of this, I'm extraordinarily worried about how Judge Alito might approach issues like wiretapping, monitoring of emails, or other privacy concerns that we've seen surface over the last several months.
In sum, I've seen an extraordinarily consistent attitude on the part of Judge Alito that does not uphold the traditional role of the Supreme Court as a bastion of equality and justice for United States citizens.
Should he be confirmed, I hope that he proves me wrong. I hope that he shows the independence that I think is absolutely necessary in order for us to preserve our liberties and protect our citizens."
Obama to Vote No on the Nomination of Judge Alito to the Supreme Court
Tuesday, January 24, 2006
"While I certainly believe that Judge Samuel Alito has the training and the qualifications necessary to serve as a Supreme Court Justice, after a careful review of his record, I simply cannot vote for his nomination.
The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties.
By ruling this way so many times over a course of so many years, Judge Alito simply does not inspire confidence that he will serve as an independent voice on the U.S. Supreme Court.
I do hope that if he is confirmed, he proves me wrong. I hope that he will uphold the best traditions of the Supreme Court as a bastion of equality and justice on behalf of every American citizen."
Remarks of Senator Barack Obama at the National Women's Law Center
Thursday, November 10, 2005
"And when my daughters ask me whether change is possible, I'll tell them that there was a time when a woman who graduated third in her class at one of the most prestigious law schools in the country couldn't find a single firm in America that would hire her. And that with all her talent and brilliance, she had to start her career as an unpaid assistant to a legal secretary at a county attorney's office in Arizona.
But I'll also mention that years later, the progress made by the women's movement made it possible for Sandra Day O'Connor to leave Arizona and become the first female justice of the United States Supreme Court. And today, if they want to find a female lawyer in a position of prominence, they need look no further than the one they call Mom."
In the coming weeks, many will be scouring the record of Judge Alito to find out exactly where he stands on choice. Since he would replace a pivotal swing vote on the Court, this makes sense. But Sandra Day O'Connor was an independent voice on a host of important women's issues -- and her story exemplifies the equality of opportunity at the heart of the women's movement.
Whether Samuel Alito will put the law on the side of upholding this ideal for every American should be at the center of our inquiry into his judicial philosophy, and I know that NWLC will be leading the way on this."
Obama Statement on President Bush's Nomination of Judge Samuel Alito to the Supreme Court
Monday, October 31, 2005
"Though I will reserve judgment on how I will vote on Judge Alito's nomination until after the hearings, I am concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of Sandra Day O'Connor and has instead made a selection to appease the far right-wing of the Republican Party."
Obama Statement on President Bush's nomination of Harriet Miers to the Supreme Court
Monday, October 3, 2005
"Harriet Miers has had a distinguished career as a lawyer, but since her experience does not include serving as a judge, we have yet to know her views on many of the critical constitutional issues facing our country today. In the coming weeks, we'll need as much information and forthright testimony from Ms. Miers as possible so that the U.S. Senate can make an educated and informed decision on her nomination to the Supreme Court."
Remarks of Senator Barack Obama on the Confirmation of Judge John Roberts
Thursday, September 22, 2005
"Let me also say that I remain distressed that the White House during this confirmation process, which overall went smoothly, failed to provide critical documents as part of the record that could have provided us with a better basis to make our judgment with respect to the nomination. This White House continues to stymie efforts on the part of the Senate to do its job. I hope with the next nominee who comes up for the Supreme Court that the White House recognizes that in fact it is its duty not just to the Senate but to the American people to make sure we can thoroughly and adequately evaluate the record of every single nominee who comes before us.
Having said that, the decision with respect to Judge Roberts' nomination has not been an easy one for me to make. As some of you know, I have not only argued cases before appellate courts but for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law. Part of the culture of the University of Chicago Law School faculty is to maintain a sense of collegiality between those people who hold different views. What engenders respect is not the particular outcome that a legal scholar arrives at but, rather, the intellectual rigor and honesty with which he or she arrives at a decision.
Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, 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.
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined 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.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.
I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man. I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes. Let me conclude with just one more comment about this confirmation process. I was deeply disturbed by some statements that were made by largely Democratic advocacy groups when ranking member Senator Leahy announced that he would support Judge Roberts. Although the scales have tipped in a different direction for me, I am deeply admiring of the work and the thought that Senator Leahy has put into making his decision. The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy's motives were unjustified. Unfortunately, both parties have fallen victim to this kind of pressure.
I believe every Senator on the other side of the aisle, if they were honest, would acknowledge that the same unyielding, unbending, dogmatic approach to judicial confirmation has in large part been responsible for the kind of poisonous atmosphere that exists in this Chamber regarding judicial nominations. It is tempting, then, for us on this side of the aisle to go tit for tat.
But what I would like to see is for all of us to recognize as we move forward to the next nominee that in fact the issues that are confronted by the Supreme Court are difficult issues. That is why they get up to the Supreme Court. The issues facing the Court are rarely black and white, and all advocacy groups who have a legitimate and profound interest in the decisions that are made by the Court should try to make certain that their advocacy reflects that complexity. These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every Senator in this Chamber from making sure that they are voting on the basis of their conscience."
Obama Statement on the Nomination of Judge John G. Roberts to the Supreme Court
Wednesday, July 20, 2005
"I take very seriously the Senate's advice and consent role regarding a Supreme Court nomination. I will be closely following the Judiciary Committee hearings on Judge Roberts and will thoroughly review his record before deciding whether or not to vote to confirm him. I hope that this process will be civil and deliberate, because that is what the American people deserve."
Remarks of U.S. Senator Barack Obama on the nomination of Justice Janice Rogers Brown
Wednesday, June 8, 2005
"I rise today to speak on the nomination of California Justice Janice Rogers Brown to the DC Circuit Court of Appeals. Now, let me begin by saying that the last thing I would like to be spending my time on right now is talking about judges.
I am sure that is true for many in this Chamber. I know that I certainly do not hear about filibusters and judges when I go back to Illinois and hold townhall meetings with people across the State. What I hear about are veterans who are concerned about their disability payments and families who are talking about how high gas prices were or how difficult it is to pay for college. And so I think this argument we have been having over the last several weeks about judicial nominations has been an enormous distraction from some of the work that is most important to the American people.
Moreover, I am not so naive as to think that speaking to an empty Chamber for the benefit of C-SPAN is somehow going to change people's minds or people's votes. I recognize that most of my colleagues, on both sides of the aisle, are fairly locked into their positions. I do not expect the President to appoint many judges of my liking. One of the things I have told some of my colleagues on this side of the aisle is that there is only one sure way to make sure Democrats are able to block what they consider to be bad judges, and that is to win elections.
And yet I feel compelled to rise on this issue to express, in the strongest terms, my opposition to the nomination of Janice Rogers Brown to the DC Circuit.
I think it is important for the American people to know just what it is we are getting. After the Supreme Court, as my esteemed colleague from Wisconsin just stated, the DC Circuit is widely viewed as the second highest court in the land. Three of our current Supreme Court Justices came directly from this court. Under its jurisdiction fall laws relating to all sorts of Federal agencies and regulations. This is a special court. It has jurisdiction that other appeals courts do not have. The judges on this court are entrusted with the power to make decisions affecting the health of the environment, the amount of money we allow in politics, the right of workers to bargain for fair wages and find freedom from discrimination, and the Social Security that our seniors will receive. It is because of this power that we deserve to give the American people a qualified judicial nominee to serve on the DC Circuit.
Now, the test for a qualified judicial nominee is not simply whether they are intelligent. Some of us who attended law school or are in business know there are a lot of real smart people out there whom you would not put in charge of stuff. The test of whether a judge is qualified to be a judge is not their intelligence. It is their judgment.
The test of a qualified judicial nominee is also not whether that person has their own political views. Every jurist surely does. The test is whether he or she can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended.
Unfortunately, as has been stated repeatedly on this floor, in almost every legal decision that she has made and every political speech that she has given, Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge. It is a pretty easy observation to make when you look at her judicial decisions. While some judges tend to favor an activist interpretation of the law and others tend to believe in a restrained interpretation of the law providing great deference to the legislature, Justice Brown tends to favor whatever interpretation leads her to the very same ideological conclusions every single time.
So when it comes to laws protecting a woman's right to choose or a worker's right to organize, she will claim that the laws that the legislature passed should be interpreted narrowly. Yet when it comes to laws protecting corporations and private property, she has decided that those laws should be interpreted broadly. When the rights of the vulnerable are at stake, then she believes the majority has the right to do whatever it wants. When the minority happens to be the minority of people who have privilege and wealth, then suddenly she is countermajoritarian and thinks it is very important to constrain the will of the majority.
Let me just give you a couple examples. In a case reviewing California's parental notification law, Justice Brown criticized the California Supreme Court decision overturning that law, saying that the court should have remained 'tentative, recognizing the primacy of legislative prerogatives.' She has also repeatedly tried to overturn the fact that California law recognizes Tameny claims, a line of cases that establishes that an employer does not have an unfettered right to fire an employee, but that the right has limits according to fundamental public policy. She says judicial restraint is critical. She claims that public policy is 'a function first and foremost reserved to the legislature.'
So on these cases dealing with a woman's right to choose, worker protections, punitive damages, or discrimination, she wants the judge to stay out of the legislative decisionmaking process. But Justice Brown doesn't always want the courts to exercise restraint and defer to the legislature. When Justice Brown wanted to limit the ability of juries to punish companies that engage in severe discrimination, a fellow judge on the California Supreme Court accused her of engaging in 'judicial law making.' Instead of denying it, Justice Brown defended her judicial activism. She called it creativity. This is what she said: 'All judges make law. It is arrogance, carelessness and a lack of candor that constitute impermissible judicial practice, not creativity.'
Justice Brown has also gone out of her way to use her position in the courts to advocate for increased protections for property owners. In a case about a developer that wanted to break a city rent control law, Justice Brown dismissed the fact that a majority of the city's voters had approved of that law and thought that the case should be an exception to the philosophy of narrow judicial review. Justice Brown believed that this case was one in which 'some degree of judicial scrutiny... is appropriate.' Which is it, Justice Brown? In some cases you think we should defer to the legislature and in some cases, apparently, you think it is appropriate for judges to make law. What seems to distinguish these two types of cases is who the plaintiff is, who the claimant is.
If the claimant is powerful -- if they are a property owner, for example -- then she is willing to use any tool in her judicial arsenal to make sure the outcome is one they like. If it is a worker or a minority claiming discrimination, then she is nowhere to be found.
Judicial decisions ultimately have to be based on evidence and on fact. They have to be based on precedent and on law. When you bend and twist all of these to cramp them into a conclusion you have already made -- a conclusion that is based on your own personal ideology -- you do a disservice to the ideal of an independent judiciary and to the American people who count on an independent judiciary.
Because of this tendency, and because of her record, it seems as if Justice Brown's mission is not blind justice but political activism. The only thing that seems to be consistent about her overarching judicial philosophy in an unyielding belief in an unfettered free market and a willingness to consistently side with the powerful over the powerless.
Let's look at some of her speeches outside of the courtroom. In speech after speech, she touts herself as a true conservative who believes that safety nets -- such as Social Security, unemployment insurance, and health care -- have 'cut away the very foundation upon which the Constitution rests.'
Justice Brown believes, as has already been stated in the Chamber, that the New Deal, which helped save our country and get it back on its feet after the Great Depression, was a triumph of our very own 'Socialist revolution.' She has equated altruism with communism. She equates even the most modest efforts to level life's playing field with somehow inhibiting our liberty.
For those who pay attention to legal argument, one of the things that is most troubling is Justice Brown's approval of the Lochner era of the Supreme Court. In the Lochner case, and in a whole series of cases prior to Lochner being overturned, the Supreme Court consistently overturned basic measures like minimum wage laws, child labor safety laws, and rights to organize, deeming those laws as somehow violating a constitutional right to private property. The basic argument in Lochner was you can't regulate the free market because it is going to constrain people's use of their private property. Keep in mind that that same judicial philosophy was the underpinning of Dred Scott, the ruling that overturned the Missouri Compromise and said that it was unconstitutional to forbid slavery from being imported into the free States.
That same judicial philosophy essentially stopped every effort by Franklin Delano Roosevelt to overcome the enormous distress and suffering that occurred during the Great Depression. It was ultimately overturned because Justices, such as Oliver Wendell Holmes, realized that if Supreme Court Justices can overturn any economic regulation -- Social Security, minimum wage, basic zoning laws, and so forth -- then they would be usurping the rights of a democratically constituted legislature. Suddenly they would be elevated to the point where they were in charge as opposed to democracy being in charge.
Justice Brown, from her speeches, at least, seems to think overturning Lochner was a mistake. She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot maintain regulations that ensure our food is safe and the drugs that are sold to us have been tested. It means, according to Justice Brown, that local governments or municipalities cannot enforce basic zoning regulations that relieve traffic, no matter how much damage it may be doing a particular community.
What is most ironic about this is that what Justice Brown is calling for is precisely the type of judicial activism that conservatives have been railing against for the last 50 years.
Supreme Court Justice Scalia is not somebody with whom I frequently agree. I do not like a lot of his judicial approaches, but at least the guy is consistent. Justice Scalia says that, generally speaking, the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution. That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document.
It would be one thing if these opinions were confined to her political speeches. The fact is she has carried them over into her judicial decisionmaking. That is why the California State Bar Association rated her as "unqualified" to serve on the State's highest court. That is why not one member of the American Bar Association found her to be very qualified to serve on the DC Circuit, and why many members of the bar association found her not qualified at all.
It is also why conservative commentators, such as Andrew Sullivan and George Will, while agreeing with her political philosophy, simply do not see how she can be an effective judge. Here is what Sullivan said:
'She does not fit the description of a judge who simply follows the law. If she isn't a "judicial activist," I don't know who would be.' Sullivan added that he is in agreement with some of her conservative views but thinks 'she should run for office, not the courts.'
Columnist George Will, not known to be a raving liberal, added recently that he believes Justice Brown is out of the mainstream of conservative jurisprudence.
Let me wrap up by making mention of a subtext to this debate. As was true with Clarence Thomas, as was true with Alberto Gonzales, as was true with Condoleezza Rice, my esteemed colleagues on the other side of the aisle have spent a lot of time during this debate discussing Justice Brown's humble beginnings as a child of a sharecropper. They like to point out she was the first African American to serve on the California Supreme Court.
I, too, am an admirer of Justice Brown's rise from modest means, just as I am an admirer of Alberto Gonzales's rise from modest means, just as I am an admirer of Clarence Thomas's rise from modest means, just as I am an admirer of Condoleezza Rice's rise from modest means. I think it is wonderful. We should all be grateful where opportunity has opened the doors of success for Americans of every background.
Moreover, I am not somebody who subscribes to the view that because somebody is a member of a minority group they somehow have to subscribe to a particular ideology or a particular political party. I think it is wonderful that Asian Americans, Latinos, African Americans, and others are represented in all parties and across the political spectrum. When such representation exists, then those groups are less likely to be taken for granted by any political party.
I do not think that because Justice Brown is an African-American woman she has to adhere to a particular political orthodoxy, something that has been suggested by the other side of the aisle. Just as it would be cynical and offensive that Justice Brown be vilified simply for being a Black conservative, it is equally offensive and cynical to suggest that somehow she should get a pass for her outlandish views simply because she is a Black woman.
I hope we have arrived at a point in our country's history where Black folks can be criticized for holding views that are out of the mainstream, just as Whites are criticized when they hold views that are out of the mainstream. I hope we have come to the point where a woman can be criticized for being insensitive to the rights of women, just as men are criticized when they are insensitive to the rights of women.
Unfortunately, Justice Brown's record on privacy and employment discrimination indicates precisely such an insensitivity. I will give one example. In a case where a group of Latino employees at Avis Rent A Car was subjected to repeated racial slurs in the workplace by another employee, the lower court found that Avis, in allowing this to go on, had created a hostile environment. Justice Brown disagreed with and criticized the decision.
In her opinion, she wrote that racially discriminatory speech in the workplace, even when it rises to the level of illegal race discrimination, is still protected by the first amendment. This was despite U.S. Supreme Court opinions that came to the exact opposite conclusion.
Justice Brown went so far as to suggest that the landmark civil rights law, Title VII of the Civil Rights Act of 1964, could be unconstitutional under the first amendment.
I believe if the American people could truly see what was going on here they would oppose this nomination, not because she is African American, not because she is a woman, but because they fundamentally disagree with a version of America she is trying to create from her position on the bench. It is social Darwinism, a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer. It requires no sacrifice on the part of those of us who have won life's lottery and does not consider who our parents were or the education received or the right breaks that came at the right time.
Today, at a time when American families are facing more risk and greater insecurity than they have in recent history, at a time when they have fewer resources and a weaker safety net to protect them against those insecurities, people of all backgrounds in America want a nation where we share life's risks and rewards with each other. And when they make laws that will spread this opportunity to all who are willing to work for it, they expect our judges to uphold those laws, not tear them down because of their political predilections. Republican, Democrat, or anyone in between. Those are the types of judges the American people deserve. Justice Brown is not one of those judges. I strongly urge my colleagues to vote against this nomination."
Statement of Senator Barack Obama on the Nuclear Option
Wednesday, April 13, 2005
"Mr. President, I rise today to urge my colleagues to think about the implications the nuclear option would have on this chamber and this country. I urge you to think not just about winning every debate, but about protecting free and democratic debate.
During my Senate campaign, I had the privilege and the opportunity to meet Americans from all walks of life and both ends of the political spectrum. They told me about their lives, about their hopes, about the issues that mattered to them, and they also told me what they think about Washington.
Because you've all heard it yourselves, I know it won't surprise many of you to learn that a lot of people don't think much gets done around here about the issues they care most about. They think the atmosphere has become too partisan, the arguments have become too nasty, and the political agendas have become too petty.
And while I haven't been here too long, I've noticed that partisan debate is sharp, and dissent is not always well-received. Honest differences of opinion and principled compromise often seem to be the victim of a determination to score points against one's opponents.
But the American people sent us here to be their voice. They understand that those voices can at times become loud and argumentative, but they also hope that we can disagree without being disagreeable. And at the end of the day, they expect both parties to work together to get the people's business done.
What they don't expect is for one party - be it Republican or Democrat - to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster - if they choose to change the rules and put an end to democratic debate - then the fighting and the bitterness and the gridlock will only get worse.
I understand that Republicans are getting a lot of pressure to do this from factions outside the chamber. But we need to rise above an 'ends justify the means' mentality because we're here to answer to the people -- all of the people -- not just the ones wearing our party label.
The fact is that both parties have worked together to confirm 95% of this President's judicial nominees. The Senate has accepted 205 of his 214 selections. In fact, we just confirmed another one judge this week by a vote of 95-0. Overall, this is a better record than any President's had in the last 25 years. For a President who received 51% of the vote and a Senate chamber made up of 55% of the President's party, I'd say that confirming 95% of your judicial nominations is a record I'd be pretty happy with.
Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, this is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority.
Mr. President, I sense that talk of the nuclear option is more about power than about fairness. I believe some of my colleagues propose this rules change because they can get away with it rather than because they know it's good for our democracy.
Right now, we're faced with rising gas prices, skyrocketing tuition costs, a record number of uninsured Americans, and some of the most serious national security threats we've ever had, all while our bravest young men and women are risking their lives halfway around the world to keep us safe.
These are challenges we all want to meet and problems we all want to solve, even if we don't all agree how to do it. But if the right of free and open debate is taken away from the minority party and the millions of Americans who asked us to be their voice, I fear that the already partisan atmosphere of Washington will be poisoned to the point where no one will be able to agree on anything. That doesn't serve anyone's best interests, and it certainly isn't what the patriots who founded this democracy had in mind.
We owe the people who sent us here more than that. We owe them much more."