Research Briefing

As He Prepares To Pick Supreme Court Justice, A Look At How Obama’s Lower Court Nominees Could Change Our Founding Document

To Learn More About Obama’s Disturbing Judicial Philosophy And The Judges Who Will Enact It, Please Visit www.ObamaVConstitution.com

JUST AS HIS LOWER COURT NOMINEES WOULD DO, OBAMA’S PICK FOR SUPREME COURT COULD WRITE “FOOTNOTES TO THE CONSTITUTION” TO CODIFY LIBERAL IDEAS …

In A 2003 Speech, Obama’s Nominee To The 7^th Circuit Court Of Appeals, David Hamilton, Said Judges Should Write “Footnotes To The Constitution.” “In a letter penned Nov. 3 to his GOP colleagues, Republican Sen. Jeff Sessions of Alabama blasted Hamilton for using his position to ‘drive a political agenda.’ Hamilton stated in a 2003 speech that the role of a judge includes ‘writing footnotes to the Constitution’ and believes ‘empathy’ should influence a judge's decision making, Sessions wrote.” (Cristina Corbin, “Obama's First Judicial Nomination Re-Ignites Controversy Ahead Of Vote,” Fox News, 11/06/09)

Obama’s Nominee To The 9^th Circuit Court Of Appeals, Goodwin Liu, Believes Liberals Should Have “The Opportunity To Actually Get [Their] Ideas And The Progressive Vision Of The Constitution And Of Law And Policy Into Practice.” “‘This is just a tremendous opportunity for us,’ says University of California Berkeley law professor Goodwin Liu. He’s the new chairman of the board at ACS. ‘Whereas I think in the last seven or eight years we had mostly been playing defense, in the sense of trying to prevent as many — in our view — bad things from happening, now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice,’ Liu says.” (Ari Shapiro, “Balance of Power Swings to Liberal Legal Group,” NPR, 01/03/09)

WEAKENING OUR ABILITY TO DEFEND AMERICA FROM TERRORISTS …

Preamble Says Constitution Is Ordained To “Provide For The Common Defense.” “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (Preamble, United States Constitution, FindLaw.com, Accessed 4/27/10)

But Obama’s Nominee To The 9^th Circuit Court Of Appeals, Goodwin Liu, Fought Against Justice Samuel Alito’s Nomination Because He Did Not Want To Give Government Tools To Fight War On Terror. “His deferential instinct toward government is at odds with the Supreme Court’s vital role in protecting privacy, freedom, and due process of law, and it deserves special concern in light of the questionable tactics being used to fight the War on Terror.” (Prof. Goodwin Liu, Testimony On Nomination Of Judge Samuel Alito To The Supreme Court, Senate Judiciary Committee, 01/12/06)

GIVING JUDGES THE POWER TO LEGISLATE FROM THE BENCH …

Article 1, Section 1 Of The Constitution Says All Legislative Powers Are Granted To Congress. “All legislative Powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.” (Article I, United States Constitution, FindLaw.com, Accessed 4/27/10)

But Obama’s Nominee To The U.S. District Court For Western Wisconsin, Louis Butler, Ruled That Judges “Could Make Use Of New Policy Studies … To Change Public Policy, Instead Of Leaving That Decision To Elected Lawmakers.” “Justice Butler repeatedly ignores precedent, such as in the 2005 case State v. Dubose regarding evidence being admitted in court, in which Butler believed--as the deciding vote--that courts could make use of new policy studies and social science publications to change public policy, instead of leaving that decision to elected lawmakers.” (Mark Tapscott, “Opposition Coalescing To Obama’s Federal District Court Nomination Of Louis Butler,” The Washington Examiner, 12/14/09) 

BANNING AMERICANS FROM PRAYING IN PUBLIC …

First Amendment Gives Right To Free Speech And Free Exercise Of Religion. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (First Amendment, United States Constitution, FindLaw.com, Accessed 4/27/10)

But Obama’s Nominee To The 7^th Circuit Court Of Appeals, David Hamilton, Ruled That The Indiana State Legislature Could Not Open Their Sessions With Prayers. “Since that time, Hamilton has received attention for a handful of controversial rulings in the state, including a 2005 decision to prohibit the Indiana state Legislature from beginning its sessions with Christian prayers. The ruling was later dismissed by a panel of the 7th Circuit after an appeal, which found that the individuals named in the suit had no case because they were not harmed by the prayers.” (Cristina Corbin, “Obama's First Judicial Nomination Re-Ignites Controversy Ahead Of Vote,” Fox News, 11/06/09)

OUTLAWING RESPONSIBLE CITIZENS FROM CARRYING GUNS …

Second Amendment Gives Americans Right To “Keep And Bear Arms.” “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Second Amendment, United States Constitution, FindLaw.com, Accessed 4/27/10)

But Obama’s Nominee To The U.S. District Court For Western Wisconsin, Louis Butler, Ruled To Limit “Gun-Carrying Rights.” “In State v. Fisher, the Butler court majority somehow interpreted a voter-approved constitutional amendment clearly written to expand gun-carrying rights as instead limiting gun-carrying rights.” (Editorial, “Another Radical Judge,” The Washington Times, 10/12/09)

ALLOWING CONVICTED SEX OFFENDERS TO HIDE FROM LAW ENFORCEMENT …

Fourth Amendment Bans “Unreasonable Searches And Seizures.” “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Fourth Amendment, United States Constitution, FindLaw.com, Accessed 4/27/10)

• But Obama’s Nominee To The 7^th Circuit Court Of Appeals, David Hamilton, Used Fourth Amendment To Strike Down Law That Required Convicted Sex Offenders To Submit To Internet Monitoring By Law Enforcement. “Last year, Hamilton struck down an Indiana law that required sex offenders to submit to routine and warrantless law enforcement monitoring of their Internet activity. Hamilton said it violated the U.S. Constitution. ‘The prospect of searches 'at any time' without a search warrant, without probable cause, and without even reasonable suspicion of wrongdoing, would dramatically impair the privacy these plaintiffs have the right to enjoy in their own homes under the Fourth Amendment,’ he wrote.” (Margaret Talev and Marisa Taylor, “Obama Judicial Pick Will Test Pledge To End Confirmation Wars,” McClatchy, 3/17/09)

Tenth Amendment Allows States To Take On Powers Not Delegated To The Federal Government. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Tenth Amendment, United States Constitution, FindLaw.com, Accessed 4/27/10)

• But In 2001, Obama’s Nominee To The 2^nd Circuit Court Of Appeals, Robert Chatigny, Overturned State Of Connecticut’s “Online Sex-Offender Registry,” Ordered Police “To Remove It Permanently From The Internet.” “A federal judge’s ruling overturning part of the state’s new law establishing an online sex-offender registry prompted lawmakers yesterday to offer amendments to the law. On Monday, Judge Robert Chatigny of Federal District Court ruled that the registry violated the rights of some ‘nondangerous registrants’ because they had no way to appeal. … State officials shut down Connecticut’s online sex-offender registry this morning, complying with an permanent order from a federal judge who had ruled that the state’s method of placing people on it was unconstitutional….On Tuesday, Judge Robert N. Chatigny of Federal District Court ordered the state police, who administer the online database, to remove it permanently from the Internet by today.” (Paul Zielbauer, “Hartford: Offender Law To Be Amended,” The New York Times, 4/5/01)

AND CODIFYING A LIBERAL AGENDA THROUGH JUDICIAL FIAT AT TAXPAYER EXPENSE

Fourteenth Amendment Provides All Americans Equal Protection Under The Law. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Fourteenth Amendment, United States Constitution, FindLaw.com, Accessed 4/27/10)

But Obama’s Nominee To The 9^th Circuit Court Of Appeals, Goodwin Liu, Believes Fourteenth Amendment Gives Citizens A Right To Health Care, Tax Credits And Job Training At Taxpayers’ Expense. “On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.” (Goodwin Liu, “Education, Equality, and National Citizenship, 116 Yale Law Journal 409 (2006))