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More Political Football at the Expense of Judges: Obama Appointments A Threat to the Rule of Law

By Jack M. Balkin

In an Op-Ed in the Wall Street Journal today, Steven Calabresi, Professor of Law at Northwestern University Law School, Co-Founder of The Federalist Society, raised the stakes in the traditional conservative sport of flogging courts for political gain.

If Obama is elected, he warns ominously, the ?legal left? will take over the federal appellate courts. Obama?s views, Calabresi tells us, ?requires the appointment of judges committed in advance to violating [their judicial] oath.?

What will happen when the legal left takes over the federal courts?

"[A]ny or all of the following: a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants??

This is hysterical (in all senses of the term) stuff, based upon little more than the fertile imagination of conservatives who see their long political run imperiled.

Calabresi?s argument has an obvious asymmetrical quality. Judges appointed by Democratic presidents decide cases based upon their political views; whereas judges appointed by Republican presidents decide cases according to the law.

We?ve heard this baloney many times from the right, although it?s disappointing to see coming from a respected law professor. Call me old-fashioned or naive, but I believe that vast majority of judges, Republican-appointed and Democratic-appointed, decide the vast majority of their cases in accordance with their best reading of the law. (Empirical studies of judging support this, at least below the Supreme Court.) Yes, the political views of judges sometimes influence their decisions, but generally at the margins, when the law is uncertain. (That's why the Supreme Court, which hears a higher proportion of legally uncertain cases, is different.) And this will occur regardless of whether the judges are appointed by Republicans or Democrats.

Here is the penultimate line of Calabresi?s full-throated fear piece: ?Nothing less than the very idea of liberty and the rule of law are at stake in this election.?

The suggestion that Obama?s judicial appointments will spell the demise of the rule of law is absurd. Calabresi is too smart to believe what he wrote.

Conservatives who truly care about the ?rule of law? should resist the impulse to smear judges?including judges appointed by their opponents?as people who will violate their judicial oath and decide cases in a brazenly political fashion.

Full post as published by Balkinization on October 28, 2008 (boomark / email).