What Obama's choice of Kagan tells us about his judicial philosophy.

The law, lawyers, and the court.
May 13 2010 6:11 PM

What Does He See in Her?

What Obama's choice of Kagan tells us about his own judicial philosophy.

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This leads us to Obama's other strong belief: that courts still have a central role in protecting the downtrodden. When Souter retired, the president said he wanted to replace him with a justice who "recognizes that one of the roles of the courts is to protect people who don't have a voice. That's the special role of that institution. The vulnerable, the minority, the outcast, the person with the unpopular idea, the journalist who is shaking things up." He has further refined that message this year with his round of attacks on the Roberts Court for its decision in the Citizens United case. When Stevens stepped down, Obama explained that his model for a replacement justice was someone who, "like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

How to square the president's desire for a court that protects minorities with a court that doesn't intrude on the business of the elected branches? What to make of his sense that a forceful judicial branch was vital to the ends achieved in the Civil Rights era but not for the injustices of the present day? How do we reconcile Obama's desire for justices who feel for the oppressed but restrain themselves from interposing themselves too deeply in the life of the country? And—most important—doesn't he ignore the existence of a deeply ideological right wing judiciary at his peril? Is this really the time to disarm unilaterally in the judicial arms race?

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Obama's hopes and dreams for the federal courts were anticipated last fall by Richard Epstein, the interim dean at the University of Chicago Law School when Obama was teaching there. "Obama has nothing much he wants from the courts," Epstein told Toobin. "He wants them to stay away from the statutes he passes, and he wants solidity on affirmative action and abortion. That's it."

That sounds less like a judicial philosophy than an end game. We may learn something more about the president's grand unified view of the judiciary in the coming weeks. Or we may come to learn that there just isn't one. Like liberal jurisprudence itself, the age of overarching liberal judicial philosophy may have come and gone.

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