By Kellie M. Fiedorek
2009 Legal Extern

The President of the United States is in a unique position to profoundly influence the nation’s debates over key social and political issues for decades after he leaves office.  He can do this because he maintains the authority to appoint judges to the nation’s federal courts including the U.S. Supreme Court. 

Although these nominees – including those for federal district courts and for highly-influential federal circuit courts — must be approved by the Senate, the President bears the responsibility to nominate men and women he believes are qualified for these important positions. More often than not, he also seeks to nominate individuals that share his political and social views as well as his judicial philosophy.

The decisions of these judges impact not only the parties involved in a particular case, but also the entire judicial system and even society at large.  At the appellate level, judges’ decisions become the precedent in the particular circuit where they are decided and provide persuasive authority for other federal and state courts.  Moreover, in the Supreme Court, the Justices’ decisions set an enduring precedent – one that is not often subsequently reversed or even revisited.

The President, therefore, possesses the distinctive power to impact various legal, political, and policy debates and determinations through his judicial appointments.  Because federal judges are tenured for life, the President can leave a lasting impact on the United States and its laws long after his presidency has ended.  Consequently, it is critical to be informed about the President’s motivation and ideology and understand the types of individuals he will likely appoint and the impact they will have. 

At this critical juncture in our nation’s history, it is particularly important that Americans are prepared to articulately discuss and courageously challenge any appointee whose record reveals a failure to uphold the deepest values on which this nation was established—the equal right to life, liberty, and the pursuit of happiness of all human beings.

Several current Justices on the U.S. Supreme Court are past or nearing retirement age, and quite possibly have been waiting for a Democrat President so they can “safely” announce their retirements.  Additionally, Justice Ruth Bader Ginsburg is currently being treated for pancreatic cancer.  Thus, it is extremely likely that there will be a vacancy on the Supreme Court in the near future and that President Obama could even appoint at least one Justice as early as this summer.  

Looking at President Obama’s public statements and record thus far, it is evident that he will most likely appoint activist Justices who interpret the Constitution broadly and read their own views into the law rather than simply applying the law.  This could include reading the spirit and intent of the Freedom of Choice Act – radical federal legislation that seeks to impose unregulated, unrestricted, and taxpayer-funded abortion-on-demand on the nation and to overturn more than 500 protective state and federal laws related to abortion – into the Constitution (which, as drafted, is silent on abortion).

During his campaign, President Obama stated that he finds himself compelled “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.”   A Justice’s view on how to interpret the Constitution is paramount.  The differing treatment of partial-birth abortion bans by the Rehnquist and Roberts courts, for example, reveals the importance of the Justices’ interpretative approach to the Constitution.   A Court controlled by Justices who embrace the idea of a “living Constitution” frequently find constitutional barriers to the political outcomes they dislike, while they ignore the constitutional texts that conflict with the government actions of which they approve.  While perhaps not always free from error, those Justices who embrace the textualist approach at least demonstrate a greater willingness to return difficult questions that the Constitution does not specifically address to the democratic process.

It is widely expected that President Obama will appoint U.S. Supreme Court Justices who support unfettered abortion rights and who would interpret that “right” in an increasingly unrestrained and radical manner.  During his campaign, President Obama publicly stated that he would appoint candidates in the mold of Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter, three of the Court’s most avid pro-abortion Justices who, for example, voted to strike down the federal ban on partial-birth abortion.  

Additionally, Americans should not limit their caution and attentiveness to President Obama’s potential Supreme Court nominees, but should also remain alert regarding who he nominates to the federal district and circuit courts.  Activist judges in these positions, who value their own interpretations of the law over justice and human dignity, remain equally as dangerous as those Justices appointed to the U.S. Supreme Court because decisions in the lower federal courts can have more significant and lasting impacts.  Cases appealed to the federal circuit courts seldom reach the U.S. Supreme Court, so these lower courts frequently have the final word on crucial issues.

Currently, there are 15 vacancies in the federal circuit courts — 12 geographically-based federal courts of appeal.  Their decisions cover, among other matters, abortion, civil rights, searches and seizures, age and gender discrimination, gay rights, review of federal regulations and terrorism, religious liberty, capital punishment, and corporate wrongdoing.  Many Americans are rightly concerned about the types of nominees President Obama will appoint to these courts, especially in light of the radically pro-abortion candidates he has already nominated to important positions in his Administration.

Further, President Obama has recently made several controversial nominations to three federal circuit courts.  These nominations reveal not only a shift in the federal judiciary toward Democrat control, but also a radical disregard for the principles on which this country was founded. 
On March 17, Obama nominated Judge David Hamilton, a federal district court judge in Indiana with an extensive pro-abortion and anti-religious freedom record, to the 7th Circuit  Hamilton – President Obama’s first judicial nominee — is the former Vice President for Litigation and a board member of the Indiana branch of the American Civil Liberties Union (ACLU) and a former fundraiser for the Association for Community Organizations for Reform Now (ACORN).  Hamilton was first appointed to the federal bench by President Bill Clinton in 1994, even though the American Bar Association (ABA) had given him a “not qualified” rating.

As a federal judge, Hamilton issued multiple rulings over seven years to prevent Indiana’s informed consent law—a law that fully complied with the U.S. Supreme Court’s requirements for such laws (as set out in the 1992 Planned Parenthood v. Casey decision)—from going into effect.  The 7th Circuit—the same court to which President Obama has nominated Hamilton—later reversed his decision, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”   Hamilton ruled in another decision that the Indiana House violated the Constitution by opening its session with prayers mainly representing the Christian tradition.  He stated in his decision that “they should refrain from using Christ’s name or title,” and held that sectarian prayer at the opening of the legislatives session should be banned.

Earlier this month, President Obama nominated Judge Gerard Lynch to the 2nd Circuit and Judge Andre Davis to the 4th Circuit.  Judge Lynch was a former cooperating attorney for the ACLU and Judge Davis has a reputation for handing down rulings favoring criminal defendants.  Additionally, in two cases where African-American restaurant patrons claimed they were subjected to hostile treatment, Davis instituted a framework for evaluating such claims.  While this framework was subsequently adopted by several other federal district courts, the 4th Circuit declined to do so.  Davis’ presence on the 4th Circuit could strongly influence that court on civil rights issues, in addition to bringing a more activist approach to interpreting the law.

Clearly, Americans have reason to be concerned about President Obama’s early judicial nominations as they appear to indicate that he will appoint judicial activists with radical views on critical issues such as abortion, religious freedom, and civil rights for all Americans.

Without question, the judicial appointment process must focus on the candidate’s ability and qualifications, as well as his or her willingness to adhere to the proper role of a judge, namely, to interpret the law and properly apply it.  The only litmus test the President should be applying is that judicial nominees have significant experience in the federal judiciary and recognize the extent of their authority.  This would include an acknowledgment that the judiciary is not a means to affect policy, reconstruct laws, or express political viewpoints.  As Americans, we should insist that the President hold each potential judicial candidate to this standard so that, when the President’s time in office concludes, the lasting effects of his presidency benefit the entire country.  

This article originally appeared on the Culture of Life website. To view the article as originally published, see Culture of Life.