Special Report

The Supreme Court in the Balance

The stark differences in the two presidential candidates will nowhere be felt more than in who the winner gets to appoint to the nation's courts.

By 9.10.08

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The key to understanding the Presidential election this year is that the two candidates are diametrically opposed on almost every major issue. In probably no other election since the Civil War have the differences between the two candidates been so stark.

Barack Obama has proposed a record increase in government spending, running into trillions. John McCain has proposed the strictest spending reductions since Reagan. Obama has proposed to increase the marginal tax rates for almost every federal tax. McCain proposes marginal tax rate cuts. Obama proposes to increase taxes on savings and investment. McCain proposes to reduce them.

Sarah Palin challenged the corrupt political machine in her state, in her own party, and won. Barack Obama was part of the Chicago political machine, and ran and won with its support, rejecting requests from reformers in his own party to join in challenging the machine.

John McCain has an astounding record of service to his country. Barack Obama has an astounding record of service to his left-wing political ideology.

Barack Obama has promised that if elected he will support passage of federal legislation that will strike down all state restrictions on abortion. No more requirements for parental consent, or even parental notice. No more waiting periods for the mother to think over whether she really wants an abortion for her child. No more informed consent laws requiring that the mother be provided concrete information regarding abortion and its effects before deciding whether to go through with it. Obama would also reverse the ban on federal funding for abortions.

John McCain has said just the opposite, that he would be a pro-life President leading a pro-life Administration. Barack Obama has explained that if one of his daughters made a mistake and became pregnant, he "would not want to punish her with a baby." When Sarah Palin's 17-year-old daughter actually did become pregnant, Palin the promising young politician did not seek to hide the matter with a secret abortion. She announced that the daughter would be having the baby and marrying the father. For those who are pro-life, this could not be a more important election.

BUT NOWHERE ARE the differences between the candidates more stark than on the issue of judges.

The U.S. Supreme Court is currently split down the middle. It has four solidly conservative justices in Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito. It has four solidly liberal left Justices in John Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. In the middle is Justice Anthony Kennedy, who goes back and forth between liberal and conservative depending on the case.

Probably the most liberal two Justices on the Court will retire during the next presidential term, Stevens and Ginsburg. Justice Stevens is 88, and Justice Ginsburg (75) is not in good health. If they can be replaced by reasoned, principled justices like the most recently appointed Roberts and Alito, conservatives will finally have achieved what they have been fighting for since the Nixon era, transforming the liberal activist Supreme Court into a reasoned institution of law.

By contrast, if Obama is elected, he will not only be able to replace Ginsburg and Stevens with liberal/left clones. A majority of the current justices are over 70. If Obama serves two terms, he will be able to remake the Court into the most left-wing force for social destruction it has ever been.

McCain has said precisely that he would appoint Justices like Roberts and Alito. Obama has said explicitly he would never appoint justices like those two. He actually voted against the confirmation of Alito and Roberts. Obama has said instead that he would appoint justices like the ultraliberal, left-wing Ginsburg, who was formerly General Counsel of the ACLU, and like the consistently liberal David Souter. McCain said at the Saddleback Church debate he would not appoint justices like Ginsburg or Souter, or Stevens or Breyer for that matter.

Obama has publicly disparaged Clarence Thomas, who has had a far more distinguished legal career than Obama. McCain voted to confirm Thomas in a narrow, highly contested, Senate vote.

These differences could not be greater. This is the most important election for the Supreme Court ever. There will not be another crossroads for the Supreme Court and the federal judiciary like this in our lifetimes.

Indeed, not only the Supreme Court is at stake. The entire federal judiciary is on the line. If Obama becomes President, even for just one term, he will appoint not only two Supreme Court Justices, but hundreds of other federal judges as well. If Obama serves two terms, the federal courts will be filled with Obamaniacs replacing the retiring Reagan Bush judges.

CAN BARACK OBAMA possibly be the man you want making these appointments? Obama is a man of the left, swimming in a sea of far left extremism his whole life. Today he has the most liberal voting record in the United States Senate, more liberal even than Ted Kennedy. In his own autobiography, Obama tells us how in his youth he identified with the works of Malcolm X. That radical black author argued that white people were devils doomed to violent retribution, and he damned the United States as an oppressive society run by a rich, white establishment. Malcolm X wrote, "No, I am not an American....I am not standing here speaking to you as an American, or a patriot, or a flag saluter, or a flag waver -- no, not I! I'm speaking to you as a victim of this American system....I don't see any American dream; I see an American nightmare."

In law school, as the first black president of the Harvard Law Review, Obama could have easily been a Supreme Court clerk, and then gone to work for any major law firm he chose, making millions. But he was so committed to his left-wing ideology that he went to Chicago to work for those who were carrying on the heritage of the legendary far left community organizer Saul Alinsky. Alinsky's slogan was: "Change," which was his code word for the socialism he sought to achieve in America. Among those Obama worked with there was the far left extremist organization ACORN, known for its tactics of violent intimidation and voter fraud.

Obama also worked in Chicago with far left folk heroes Bill Ayers and Bernardine Dohrn, who led the notorious Weather Underground. That group pioneered terrorism in the 1960s and 1970s with at least 30 bombings of government facilities in America, including the Pentagon. To this day, Ayers openly confesses and romanticizes these bombings. He was quoted in the New York Times ironically on 9/11 as saying his only regret is that they did not pull off more bombings.

Ayers started a foundation in 1995 to bring "change" to the public schools, and hired Obama to be chairman of the board. Obama and Ayers also served together on the board of another left-wing foundation, the Woods Fund, leading its fight for "change." Obama started his political career with a fundraiser sponsored by Ayers and his wife Dohrn at their home, where they introduced him to their friends in the trendy, lefty Hyde Park political community. At conferences and similar events, Obama has joined Ayers as a speaker.

Naturally, Obama also joined the Trinity United Church of Christ in Chicago's South Side, famed for its institutional commitment to radical black liberation theology, long faithfully professed by its previous leader the Reverend Jeremiah Wright. Black liberation theology teaches that Jesus was a black man, whose doctrine means that African-Americans must achieve liberation by revolting against the oppression of white imperialist America, with its history of enslaving black people and colonizing them in urban poverty. James Cone, a leading black liberation theologian, writes, "In more sophisticated terms, this may be called a theology of revolution." Cone also wrote, "One cannot help but think that most whites 'loved' Martin Luther King, Jr. not because of his attempt to free his people, but because his approach was the least threatening to the white power structure."

This was the explicit, professed doctrine of the church that Barack Obama and his wife Michelle remained members of for 20 years, where they were married by the Rev. Wright, where their children were baptized, and where Obama contributed over $20,000 in his own funds over the years.

WITH THIS BACKGROUND, it was no surprise that when Obama showed up in 2006 in Kenya, his father's country of origin, he supported and even openly campaigned for presidential candidate Raila Odinga. Educated in the 1960s in communist East Germany, Odinga is a radical leftist who headed the socialist party in challenging the pro-American incumbent president of Kenya, Mwai Kibaki. Odinga named his first-born son Fidel after hearing what he thought was an inspiring lecture from the Cuban dictator. Odinga's motto: "Real Change for Africa".

Obama here was following in the footsteps of his father, who was known as a radical socialist economist in Kenya, arguing against private property and for the communal ownership of land. His father once wrote, "Theoretically, there is nothing that can stop the government from taxing 100 percent of income so long as the people get benefits from the government commensurate with their income which is taxed."

Again, is Barack Obama the man we want determining the future of our Supreme Court, and appointing hundreds of judges to dominate the federal bench?

We should note what is meant by the political terms conservative and liberal when applied to judges. When we say conservative judges, we do not mean judges that will rule for conservative results. We mean judges who will do what Chief Justice Roberts explained during his confirmation hearings. They will act as umpires who will impartially apply the rules as written, not seek to participate in the game and change the results.

In other words, conservative judges are strict constructionists who will apply the law and the Constitution objectively as written, regardless of whether they approve of the outcome that results in any particular case. Liberal judges, by contrast, are judicial activists who feel free to make up new law from the bench to get the outcome in a particular case that they want, regardless of what the written law or Constitution actually says.

Barack Obama, who has taught constitutional law, has said quite explicitly that he believes in the liberal philosophy of judging, that judges need to look primarily at the social impact of their rulings, rather than the law as written. John McCain has said just the opposite, that he believes that judges must be strict constructionists, applying the law and Constitution as written, not judicial activists making up the law as they desire.

YEARS OF REAGAN AND BUSH judicial appointments have had a big impact on the courts, and the rulings they produce. Conservatives just won a huge victory this year in the case of Heller v. D.C., where the Supreme Court ruled that the Second Amendment really does protect an individual right to keep and bear arms like it says. To the shock of liberals everywhere, the Court struck down the District of Columbia's gun control laws as unconstitutional, because they effectively prohibited the use of handguns in self-defense. As another example, the Supreme Court also has recently upheld the congressional ban on partial birth abortion, after prior decisions had held such bans unconstitutional.

Yet, the decisions in these cases were 5-4, with Ginsburg and Souter in particular voting the wrong way. Ginsburg and Souter were also in a 5-4 minority in the Indiana Voter ID case, arguing lamely that requiring picture IDs such as a driver's license was an unconstitutional burden on the right to vote. But Ginsburg is so far to the left that she dissented even from a majority opinion by the ultraliberal Justice Stevens holding that it was not an unconstitutional search and seizure for drug sniffing dogs to identify the possession of illegal drugs during a traffic stop.

So who is appointed to the Supreme Court in the future, and the other federal courts, will make an enormous difference in the future of our country. And that depends critically on who is elect president this year.

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About the Author
Peter Ferrara is Director of Entitlement and Budget Policy at the Heartland Institute, General Counsel of the American Civil Rights Union, Senior Fellow at the National Center for Policy Analysis, and Senior Policy Advisor on Entitlements and Budget Policy at the National Tax Limitation Foundation. He served in the White House Office of Policy Development under President Reagan, and as Associate Deputy Attorney General of the United States under President George H.W. Bush.