This quote comes from Laura Echevarria’s transcription of Obama’s 2007 speech at a Planned Parenthood convention. I included this whole quote because of criticism that my use of the quote previously took the quote out of context. Here is the full context.
Dessa Cosma: Um, as you were talking about earlier, the recent Bush Supreme Court’s decision really took away critically important decisions from women and put them in the hands of politicians. And as a result of this, we’re expecting, and have already seen, so much anti-choice legislation at the state level. Um, what would you do at the federal level not only to ensure access to abortion but to make sure that the judicial nominees that you will inevitably be able to pick are true to the core tenets of Roe v. Wade?
Barack Obama: Well, the first thing I’d do as president is, is sign the Freedom of Choice Act. [Applause.] That’s the first thing that I’d do. Um, but the, okay, but, but your question about the federal courts is absolutely on target. I taught Constitutional Law for ten years and I have to say after reading this latest decision and the series of decisions that the Supreme Court has been putting forward that I find it baffling.
Because sometimes they are striking down acts of Congress like the Violence Against Women’s Act showing very little deference to Congressional decision making and that somehow when it comes to a piece of legislation that is not taking into account clear doctrine that the Supreme Court has laid out, they say, “Oh, that’s fine. Congress can make those decisions.” There is an inconsistency and I believe a hypocrisy in terms of how we see many of these decisions issued.
That’s why I think it’s important for us obviously to get not only a Democratic White House as well as a stronger Congress to protect these rights. But I also think it’s important to understand that there’s nothing wrong in voting against nominees who don’t appear to share a broader vision of what the Constitution is about.
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. That’s one of the reasons I opposed Alito, you know, as well as Justice Roberts. When Roberts came up and everybody was saying, “You know, he’s very smart and he’s seems a very decent man and he loves his wife. [Laughter] You know, he’s good to his dog. [laughter] He’s so well qualified.”
I said, well look, that’s absolutely true and in most Supreme Court decis–, in the overwhelming number of Supreme Court decisions, that’s enough. Good intellect, you read the statute, you look at the case law and most of the time, the law’s pretty clear. Ninety-five percent of the time. Justice Ginsberg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.
But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright? (emphasis added).
What is Obama saying? First, he wants to remove all restrictions on abortions, in all states. Second, he says that it is vital for justices to support the Roe v. Wade decision. This decision was based on a loose interpretation of the Constitution [read this insightful article that discusses the history of the phrase separation of church and state. What does this have to do with the current topic? The author also addresses the history of strict vs. loose interpretations of the Constitution, which is the heart of this matter]. It’s still controversial today. There is no consensus among constitutional scholars and lawyers or judges about the constitutionality of the decision.
Obama stated that Supreme Court justices will essentially agree on 95% of cases – that their “broader vision of what America should be” won’t really matter. It’s the other 5% of cases that matter to Obama. Those are the cases that can change the direction of America – cases like Roe v. Wade. In this added context his statement does not appear extreme at first glance. However, Obama also opposed the nominations of Justices Roberts and Alito, who are both “conservative” in that they strictly interpret the Constitution (even in those “5% of cases”). The Constitution is not a living document, unless an amendment is passed by 75% of states’ legislatures. Justices shouldn’t treat it as a living document because their interpretations are based on what’s written in the Constitution – they don’t have the power to change it or to legislate laws. In the end, in the broader context, Obama’s criterion for selecting judges is still disturbing. Obama apparently has a broader vision of what the Constitution is about but doesn’t say. It is apparent though, in the context of his speech, that some of that vision includes expanding Roe v. Wade (see the Freedom of Choice Act, for example, which would overrule all laws against abortion, including bans on partial-birth abortions).
Even with the broader context of Obama’s words, my previous post still stands.