One of the most critical issues to consider in the upcoming presidential election is the impact of either candidate on the courts, particularly the Supreme Court. I am certainly no fan of John McCain, but based on his somewhat conservative background I would be more comfortable with him selecting Supreme Court justices than Barack Obama. The fact that Senator Obama is an outright liberal and socialist has implications for the types of justices he would nominate. Obama is so liberal that the National Journal rated him the most liberal US senator of 2007 based on 99 key votes. He supports abortion - even partial birth abortion, the abolition of any federal prohibitions on gay marriage, and gun control. He supports bad socialist policies like comparable worth, government healthcare, and raising the minimum wage and indexing it to inflation. Even more concerning to me is his father, an avowed communist, and the influence he may have had on Obama. If Arnold Schwarzenegger can be scrutinized because of his father's association with the Nazis, it certainly seems legitimate to raise questions about Barack Obama's political philosophy based on that of his father - a man he apparently greatly admired. Combine his social and political views with some statements he has made about the role of judges and I think Americans have reasons to be concerned about the impact of an Obama presidency on the judiciary. As reported in a Washington Times article, Senator Obama made the following statements regarding John Roberts' confirmation to the Supreme Court:

The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. 1

Obama also said the following regarding the confirmation of Samuel Alito:

"When I examine the philosophy, ideology and record of Samuel Alito, I am deeply troubled," [Obama] said in another floor speech on Jan. 26, 2006. "There is no indication that he is not a man of fine character. But when you look at his record, when it comes to his understanding of the Constitution, I found that in almost every case he consistently sides on behalf of the powerful against the powerless." 1

Back to Roberts:

In [John Roberts'] work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. 1

Alito received similar criticism from Obama:

If there is a case involving an employer and employee, and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there is a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he will rule in favor of the state. 1

See a recurring theme here? Obama apparently believes that courts should favor the weak over the strong, not rule based on the law as written by the legislature. This is blatant activism. Justice Roberts identifies the proper role of a judge:

"Judges are like umpires. Umpires don't make the rules; they apply them," said Chief Justice Roberts. "I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes, and not to pitch or bat." 1

Roberts' views are also those of Alexander Hamilton, who described the judiciary in Federalist #78 as having "neither force nor will, but merely judgment". 2 In other words, the courts are to render judgment based on the law as written by the legislature, not the personal views of the judge. Obama apparently thinks differently than Hamilton in that his statements imply that a judge should insert into his rulings a partiality toward the perceived weaker litigant. Not only does this kind of thinking erode objectivity, it blurs the separation of powers between the legislative and judicial branches of the federal government. By inserting his bias, the judge alters the law into a form that may not have been intended by the legislature. This is absolutely improper and it erodes the ability of the people to rule themselves through their elected representatives.

   It seems that Obama views the courts through the lens of class struggle in a way that disturbingly echoes the sentiments expressed in the Communist Manifesto. The following is an excerpt of Frederick Engel's introduction to the 1883 German edition of the Manifesto published shortly after the death of Karl Marx:

The basic thought running through the Manifesto - that economic production, and the structure of society of every historical epoch necessarily arising therefrom, constitute the foundation for the political and intellectual history of that epoch; that consequently (ever since the dissolution of the primaeval communal ownership of land) all history has been a history of class struggles, of struggles between exploited and exploiting, between dominated and dominating classes at various stages of social evolution. (emphasis mine) 3

Note the focus on the "exploited and exploiting" and the "dominated and dominating", i.e., the weak and the strong. The sentiments expressed in the Communist Manifesto sound awfully similar to Obama's weak and strong sentiments. Considering his public statements and the views of his father, one certainly can wonder about Obama's political philosophy and if it is consistent with that of our Founders.

   If Obama is elected to the highest office in the land, he will be charged with protecting and preserving the Constitution. Based on his views on the role of the courts, it is easy to wonder if he can truly fulfill that charge. What are the courts going to look like if he is elected president? Is he going to nominate judges that will look for the weak party in every case and rule in their favor regardless of what the law says, substituting the will of the unelected judge for that of the people's representatives? Or will he nominate judges that will act as the Founders intended, ruling impartially regardless of who is perceived to be weak or strong, based on the written law? It appears that Obama favors the former, and the American people ought to take this into consideration when they go to the polls in November.