Quin Hillyer
Obama and his judges should both be humble
By: Quin Hillyer
Examiner Columnist
March 16, 2009
When it comes time for President Barack Obama to nominate federal appellate judges, he ought to seek humility in his nominees and show some humility himself.
In essence, that was the advice last week of a philosophically diverse trio of legal experts at a forum sponsored by the Heritage Foundation. Those experts are correct.
The American people do not like activist, leftist judges. If Obama tries to stack the court with such nominees, he risks alienating the broad middle of the electorate that gave him his presidential victory margin.
Heritage is, of course, a conservative outfit, but it was the panel’s most liberal member who first struck the “humility” theme. Walter Dellinger, solicitor general under Bill Clinton and most recently lead counsel for the District of Columbia’s efforts (unsuccessful) to defend the constitutionality of its gun control laws, offered seven pieces of judge-picking advice to Obama. The very first was to look for a “quality of humility… (which is) the quality most lacking in our judiciary.”
Relatedly, Dellinger’s second advice was to “name judges who play well with others” – in other words, who work collegially with other judges on their court to gain greater consensus in decisions.
Centrist Stuart Taylor, famed legal affairs columnist for the National Journal, agreed. Not only that, but he said that “Obama may regret going too far left.” Taylor said that the more ideologically leftist the judges, the more often Obama will be “seeing his national defense policies nibbled to death.”
Taylor said all presidents find they need certain powers over the military – completely apart from recent controversies over “torture” and “enemy combatants” – and that leftist judges almost always try to erode those powers.
Conservative law professor Jonathan Adler, whose writings regularly appear at National Review Online (among many other places), agreed with Dellinger’s point about “playing well with others,” noting that the brilliant conservative Supreme Court Justice Antonin Scalia reportedly has lost majorities by being so caustically dismissive of other points of view.
Adler then offered advice that essentially amounts to saying Obama himself should show the humility of playing well with others. Adler picked up a refrain pushed increasingly in recent months not just by conservatives but by left-leaning outlets such as the Los Angeles Times editorial page, namely, that Obama should emulate President George W. Bush by renominating several of his predecessor’s judicial nominees who were blocked by his own party’s senators.
That way, the Times editorial said, Obama could help bury much of the ill will built up during eight years of bitter battles over judicial nominees in the Senate.
Interestingly, both of Adler’s less-conservative co-panelists agreed. All three, unprompted, named former acting attorney general Peter Keisler (also touted in this column) as somebody who would clearly be meritorious and who wouldn’t change the ideological makeup of the appeals court (the D.C. Circuit) in question. (Dellinger called Keisler “a nominee of exceptional quality.”)
Panelists said that other former Bush nominees who Obama may want to consider are Paul Diamond of Pennsylvania and Rod Rosenstein of Maryland.
“As a senator, Obama was not particularly accommodating on judicial nominees,” Adler said. “To do a little bit in the other direction would immediately put the issue to rest as to whether the president can be bipartisan.”
Dellinger added an important caveat. He said Obama shouldn’t just renominate a Bush choice as a gift, but instead as “part of the process of negotiation” in return for pledges not to use various procedural maneuvers to block later Obama picks.
Dellinger also noted that while he prefers liberal judges, he agrees that Obama should not go with hard-left nominees, if only for political reasons. For one thing, he said, Obama “will never again run in a contested Democratic primary,” so leftist-activist voters can’t directly punish him for a bit of moderation.
At a luncheon after the public Heritage event, while on the record, Dellinger acknowledged the reality of public politics on the issue.
“I totally agree,” he said, “that the judicial philosophy issue breaks in favor of conservatives across the country.”
He was talking specifically about state-court races, not federal – but then he added that the “conservative philosophy” on judges “plays well in the Senate races, too.”
Words to the wise.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.
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