In his 2006 book The Audacity of Hope, Obama expresses his belief that the U.S. Constitution is a living document (subject to constant reinterpretation and change), and states that, as President, he would not appoint a strict constructionist (a Justice who seeks to apply the text as it is written and without further inference) to the Supreme Court: “When we get in a tussle, we appeal to the Founding Fathers and the Constitution’s ratifiers to give direction. Some, like Justice Scalia, conclude that the original understanding must be followed and if we obey this rule, democracy is respected. Others, like Justice Breyer, insist that sometimes the original understanding can take you only so far—that on the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document and must be read in the context of an ever-changing world.”
Emphasis on a Justice's “Heart” and on Helping “the Weak,” Rather Than on Abiding by the Law
When President Bush in 2005 nominated John Roberts to be Chief Justice of the Supreme Court, then-Senator Obama stated that few Supreme Court cases involve any controversy at all, “so that both a [conservative like] Scalia and a [leftist like] Ginsburg will arrive at the same place most of the time on those 95 percent of cases.” In the other 5 percent, he said, “the critical ingredient” was neither the law nor the Constitution says, but rather “what is in the judge’s heart.” Obama said in a floor speech on September 22, 2005: “[W]hen 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 ... he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process … he seemed dismissive of concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.”
Obama was also “deeply troubled” by “the philosophy, ideology and record” of yet another Bush nominee to the Supreme Court, Samuel Alito. “[W]hen you look at his record,” Obama said in a floor speech on January 26, 2006, “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.”
Explaining the criteria by which he would appoint judges to the federal bench, presidential candidate Obama declared: “We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old—and that's the criterion by which I'll be selecting my judges.”
Obama Appoints Sonia Sotomayor to the Supreme Court (May 2009)
In her college yearbook, Sotomayor selected, as her special quotation, the following statement of Norman Thomas, who ran for U.S. president six times on the Socialist Party ticket: “I am not a champion of lost causes, but of causes not yet won.”
In the early 1990s, Sotomayor spoke publicly and proudly about the role that affirmative action (racial and ethnic preferences) had played in her educational background: “I am a product of affirmative action. I am the perfect affirmative action baby. I am Puerto Rican ... I was accepted rather readily at Princeton, and equally as fast at Yale. But my test scores were not comparable to that of my classmates, and that's been shown by statistics, there are reasons for that. There are cultural biases built into testing, and that was one of the motivations for the concept of affirmative action, to try to balance out those effects.”
In 1998 the Family Research Council named Sotomayor as the recipient of its Court Jester Award, mocking her decision to extend the application of the Americans With Disabilities Act to a woman who had cited her own inability to read as the “handicap” that caused her to fail the New York State bar exam several times.
In 2001 Sotomayor gave a speech at UC Berkeley, during which she suggested, approvingly, that making the federal bench more “diverse”—in terms of ethnicity, race, gender, or sexual orientation—“will have an effect on the development of the law and on judging.”
Refuting the notion that judges should not permit personal traits (race, gender, ethnicity) to influence their legal decisions, Sotomayor said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” This assertion by Sotomayor was not an isolated incident. Indeed, she delivered multiple speeches between 1994 and 2003 in which she suggested “a wise Latina woman” or “wise woman” judge might “reach a better conclusion” than a male judge.
Sotomayor is a member of the National Council of La Raza, which favors mass immigration and ever-increasing rights for illegal immigrants. Awash in a victim mentality, she describes Latinos as one of America’s “economically deprived populations” which, like “all minority and women’s groups,” are filled with people “who don’t make it in our society at all.” Attributing those failures to inequities inherent in American life, Sotomayor affirms her commitment to “serving the underprivileged of our society” by promoting affirmative action and other policies designed to help those who “face enormous challenges.”
In a 2005 panel discussion for law students, Sotomayor said that a “court of appeals is where policy is made”—a candid rejection of the long-accepted principle that a judge's proper role is to interpret the law rather than to create it. Then, remembering that the event was being recorded, Sotomayor added immediately: “And I know—I know this is on tape, and I should never say that because we don’t make law. I know. O.K. I know. I’m not promoting it. I’m not advocating it. I’m—you know.”
Sotomayor is an advocate of legal realism, which the Traditional Values Coalition (TVC) describes as a judicial philosophy that is “diametrically opposed to the concept of strict construction/originalism as advocated by conservative legal thinkers and judges.” TVC adds that according to legal realism: “[J]udges should do more than interpret the law or look to the original intent of the writers of the law or the Constitution. Judges should bring in outside influences from social sciences, psychology and politics, plus their own views, to craft the law….” Suggesting that the public wrongly expects “the law to be static and predictable,” Sotomayor contends that courts and lawyers are “constantly overhauling the laws and adapting it [sic] to the realities of ever-changing social, industrial and political conditions.”
Obama Appoints Elena Kagan to the Supreme Court (May 2010)
A week after Ronald Reagan’s presidential victory in November 1980, Kagan, who was then a student at Princeton University, wrote in the campus newspaper that her immediate “gut response” to Reagan's election had been to conclude “that the world had gone mad, that liberalism was dead, and that there was no longer any place for the ideals we held or the beliefs we espoused.” Soon thereafter Kagan predicted, with a hopeful spirit, that “the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore.”
The following year, Kagan penned her senior thesis—titled “To the Final Conflict: Socialism in New York City, 1900-1933”—wherein she lamented that “a coherent socialist movement is nowhere to be found in the United States”; that “Americans are more likely to speak of … capitalism’s glories than of socialism’s greatness”; and that “the desire to conserve has overwhelmed the urge to alter.” Kagan called these developments “sad” and “chastening” for “those who, more than half a century after socialism’s decline, still wish to change America.”
As a young lawyer, Kagan clerked for U.S. Supreme Court Justice Thurgood Marshall, whom she now identifies as her hero. Regarding affirmative action, Marshall infamously told fellow Supreme Court Justice William O. Douglas, “You [white] guys have been practicing discrimination for years. Now it's our [blacks'] turn.”
In one of her legal writings, Kagan cited Thurgood Marshall's assertion that the Constitution, “as originally drafted and conceived,” was “defective.” This view is consistent with President Obama's contention that the Constitution “is not a static but rather a living document and must be read in the context of an ever-changing world.” Kagan has also quoted Justice Marshall saying that the Supreme Court's mission is to “show a special solicitude for the despised and the disadvantaged,” rather than simply to interpret the law.
In an article she wrote for the University of Chicago Law Review, Kagan indicated that there could be instances where the government might justifiably interfere with the right to free speech: “If there is an ‘overabundance’ of an idea in the absence of direct governmental action—which there well might be when compared with some ideal state of public debate—then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse.” This position has profound implications as regards the future of conservative talk radio.
Kagan served under President Clinton in various capacities. During her years in the Clinton White House, she supported race preferences in the form of affirmative action.
During her tenure as dean at Harvard Law School, Kagan co-signed a letter urging the Senate not to adopt an amendment that would have protected the White House from lawsuits filed by foreign terrorists charging that their “constitutional rights” had been violated by American law-enforcement and intelligence authorities.
In 2006, Kagan instituted three new courses to the required curriculum at Harvard Law. One of these courses focuses on public international law; another deals with international economic law and multinational financial transactions; the third is a comparative law class whose purpose is to “introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders, and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions.” While adding these three required courses, Kagan eliminated a requirement for students to take at least one constitutional law class at any time during their legal education.