Conservative View On Obama’s Judicial Nominees

Obama’s Judicial Nominees, by Ed Whelan
Bench Memos/NRO, Friday, February 20, 2009

In this essay, Princeton professor (and—disclosure—Ethics and Public Policy Center board member) Robert P. George argues that the real-world constraints in the fields of national security and economics make it all the more certain that President Obama will deliver to “the left, fully and without dilution, victory on the moral and cultural issues”, especially through the courts:

What Obama’s judicial nominees will have in common is a belief that
judicial power may legitimately be used, and should be used to achieve
left-liberal moral and political goals. Their belief lacks any basis in the text
of the Constitution, the logic of its provisions, or its structure and original
understanding, but never mind. Some will propose moving quickly, others more
cautiously and gradually, but all will subscribe to one version or another of
the idea that the “majestic generalities” of the Constitution (free speech, due
process, equal protection) need to be given content by judges reading into them
ideas such as abolishing the legal definition of marriage as the conjugal union
of husband and wife, extending legal abortion, requiring the public funding of
abortion, and invalidating parental notification and informed consent laws and
laws affording conscience and religious liberty protection to pro-life
physicians, healthcare workers, and pharmacists.

The Obama judges are likely to revive the idea (championed by influential
liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme
Court) that there is a constitutional right to assisted suicide, and expand
constitutional protection of pornography, including “virtual” child pornography
that is manufactured without the use of actual children. They will defend
preference-based affirmative action policies in hiring and employment as
constitutionally warranted efforts to achieve an allegedly compelling state
interest in racial, ethnic, and sexual “diversity.” They will likely place
further restrictions on religious activities and expression in public schools
and other governmental institutions by adopting a broad reading of the
“establishment clause” and a narrow reading of the “free exercise” clause of the
First Amendment.

Alas, that sounds accurate to me.