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Obama Administration May Bring Ideological Shift To Federal Courts

Publication Date: 
December 31, 2008
Judy Woodruff

Judy Woodruff of Newshour with Jim Lehrer interviews Professor Pamela S. Karlan about judicial appointments in an Obama administration:

Judy Woodruff: Professor Karlan, what do you think the potential is?

Pam Karlan, Stanford University Law School: Well, I think there are two things. One is, every president in recent years who's come into the office has appointed about 300 judges to the federal bench. So that means that a substantial number of the judges who will be sitting for the next decade or so will be people that were appointed before President Obama takes office.

But I do think that different presidents differ in their philosophies about whom to appoint to the bench, and that makes a difference, not only on the courts of appeals, but I think even in the district courts, because how a judge finds the facts or resolves disputed factual questions in front of him may depend a lot on what that judge's experience has been before he came to the bench or what her worldview is like.

How he or she exercises discretion is going to be different. In a lot of cases, there's a lot of room for judges to find the facts differently or to apply the law differently.


Judy Woodruff: Professor Karlan, we know that the president-elect taught constitutional law for a while at the University of Chicago. How much is known, do we know right now about his judicial philosophy?

Pam Karlan: Well, we know things that he said in the campaign debates and on the stump. And he's talked about wanting judges who've had some real-world experience. He wants judges who are empathetic.

He taught courses related to voting rights when he was at the University of Chicago, and he takes, I think, a fairly traditional moderate-to-liberal view that one of the things courts are supposed to do is to protect people who aren't able to protect themselves fully through the political system.

I don't think he's outside the mainstream in any sense. The mainstream is a very wide river, and it ranges from people who are quite liberal to people who are quite conservative, but they're all in that mainstream.

Judy Woodruff: So based on that, what would you expect him to do?

Pam Karlan: Well, I would expect to see, for example, that he'll appoint a number of judges who have done legal services work for poor people. He's likely to appoint more judges who have been criminal defense lawyers than some of the Republican presidents, who've really only appointed people who have been prosecutors. He may appoint people who've worked for some of the civil rights groups to the bench.

But I think, you know, his own background suggests that he cares tremendously about competence and intelligence and technical skill. And those things can be found in lawyers from a wide range of backgrounds and from a wide range of practice areas.


Judy Woodruff: Professor Karlan, how much of a shift did you see in the courts under President Bush?

Pam Karlan: Well, I actually -- activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.

I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?

So I don't think it's a question of activism versus passivity; I think it's a question of following the law, but also finding the facts. And I think this is something that's critical for people to understand.

A lot of what judges do is to try and resolve disputed factual questions. When a district judge, for example, sits on a discrimination case and the employee says, "I was fired because I was a woman," and the boss says, "You were fired because you were incompetent," the judge has to resolve that factual question. And that's not an issue of activism versus non-activism. That's a judge bringing to bear his common sense.


Judy Woodruff: Well, two questions. Professor Karlan, just quickly, is that something individual people should be worried about? And where should we expect to see the changes? We know there are, what, four vacancies on the Fourth Circuit. That's Maryland, Virginia, North and South Carolina.

Pam Karlan: Yes, I think that President Obama will appoint judges who are different from the judges that a President Bush or a President McCain would have appointed, but I think they'll be excellent judges. I think they will follow the Constitution. I think they will follow the law.

And I don't think there's a problem with differences in ideology, because judges are different. I think you will see a bigger change on the Fourth Circuit more quickly because there are more vacancies there than on any of the other courts of appeals, but over the next four or eight years, I think the courts will shift back to the center and away from the far right, which is the direction which they've been going for the past eight years.