The Federalist Society is comprised of conservatives and libertarians interested in the current state of the legal order in America.
In his speech, McConnell, Republican leader of the U.S. Senate, said that Republican senators in the new Congress would refrain from engaging in “extra-constitutional” measures to derail President-elect Barack Obama’s nominees.
Although Democratic senators had “distorted and abused” the confirmation process at the expense of qualified judges during President Bush’s time in office, Republicans would not respond in kind, said McConnell.
However, judicial nominees who have identified themselves with political causes in line with the interests of favored groups, including some of the politically correct ones identified by Obama during the presidential campaign, might not be able to keep their oath to uphold the law, McConnell said.
While speaking at a Planned Parenthood conference in July 2007, for example, Obama discussed the U.S. Supreme Court and the qualifications that he would look for in potential nominees.
“We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom,” said Obama. “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'm going to be selecting my judges.”
This “unorthodox” view of the judiciary’s proper role in America’s constitutional system will be tested during the confirmation process, if it means nominees are predisposed to favor certain sides in litigation based on empathy and not merit, McConnell said.
The “empathy” approach “calls into question whether nominees chosen on these grounds will ever be capable of living up to their solemn oath of administering justice,” he said. “Republicans have always insisted the judicial oath means what it says, and we will continue to insist on it.”
“If President Obama’s top criteria in selecting nominees is empathy, then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law,” said McConnell. “There is one side that judges should be on, just one side – and that’s the side of the law.”
The judicial confirmation process is barely recognizable from what it was a few years ago thanks to the ideological tests Senate Democrats have established that run counter to traditional ground rules, McConnell noted.
At the behest of Laurence Tribe, a liberal law professor with Harvard University, and Cass Sunstein, a liberal law professor with the University of Chicago, Democratic senators implemented changes to the confirmation process that place political ideology above traditional criteria, McConnell said.
Sen. Chuck Schumer (D-N.Y.), for example, organized hearings on the Senate Judiciary Committee that served as a conduit for “extra-constitutional” judicial confirmation tests that Democrats applied against Bush’s court picks, McConnell explained.
The first hearing was entitled, “Should Ideology Matter?” The next one was, “The Senate’s Role in the Nomination and Confirmation Process: Whose Burden?”
The end result was that Democrats declared themselves to be “the sole arbiters of political moderation” and imposed new burdens on nominees with little or no deference to the president, said McConnell.
“Instead of the traditional standard of legal ability, integrity, temperament and fealty to the law, Democrats now insist on other considerations like sympathy for certain groups,” he said.
Over the past eight years Democratic senators have had ample opportunity to put their new standards into action, McConnell said.
Even after acknowledging that Chief Justice John Roberts had the acumen and the intellect to sit on the U.S. Supreme Court during his confirmation hearings, Democratic senators, including Obama, voted against the nominee on “extra-constitutional grounds,” said McConnell.
At the Federalist meeting, Wendy Long, chief counsel for the Judicial Confirmation Network, told CNSNews.com that the question of possible nominees to the Supreme Court unfortunately did not figure prominently in the 2008 campaign.
However, polls showed that a substantial majority of the Americans do not share Obama’s view that judges should align themselves with politically correct interests or causes, Long said.
Senators who must go on record as supporting or opposing a particular nomination could be subject to pressure from constituents who favor judicial restraint, she said.