Voting Politically

I don't understand how a judge can avoid interpreting the law and the constitution.
They are filled with subjective concepts: Cruel and unusual punishment, Reasonable, prudent, privacy, public interest...

However they can go only so far from the explicit language of the constitution. As controversial as slavery was, it was allowed in the constitution and the judges in the dred scott case ruled accordingly. It required the passage of amendments to change the constitution. Same with Suffrage. Sometimes a judge may not like or agree with the constitution but they are obligated to respond to the explicit language in it until the states make amendments.

The ruling in Dred Scott wasn't that slavery was constitutional, it was (narrowly) that slave status held even when traveling through free states, and (broadly) that Black former slaves (or of slave descent) were permanently barred from citizenship -- neither claim of which was in the constitution, the last of which seemingly was explicitly rejected in the drafting of the constitution (rejecting an amendment by the South Carolina delegation to restrict citizenship to white people).

What matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

"in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.: "
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I can't quote percentages, but I think what is in the judges heart also affects the judicial and Constitutional philosophy he adopts, therby affecting his willingness to reverse precedent and what he reads into the particular words of the Constitution itself.

Any final ruling by SCOTUS is a consensus opinon, because there is never an ultimate 'true' reading of law or the Constitution.

While those questons are being contentiously sorted out, I think the question of inequalities needs to be tackled at the level of equal representation.

When members of the government file amicus briefs, I become uneasy. The government's voice has disproportionate power, especially if presiding judges feel either loyalty or antipathy toward a current administration.

In the lower courts, the amount of justice meted out depends very much on the quality of repreentation one can afford to buy. That's a travesty of the very concept of equal justice, IMO.

The big questions (Constitutional law, ets) are difficult.
In the meantime, the smaller problems (equal represetnation) shouln't be neglected.

Runasim

David Schraub began his post with this:

Some folks have been giving Barack Obama a hard time for his claim that the court’s should serve as a refuge and defender of the oppressed in America.

I responded not with my own words but the above is a quote directly from Barak Obama on why he was going to vote against the nomination of Judge Roberts.

When I read this some time back it was precisely why I decided to support Hillary over Obama. It is clear to me that Barak Obama wants activist judges in the Supreme court and that they should, when you read the rest of his opinion, effect rule with the little guy in mind rather then the rule of law in mind.

Neocon,

As I tried to say in my comment, an activist judge is one who has different concerns in his heart and a different philosopy of Constitutional law than I do, no matter who I am.
Also, as I tried to say, defending the oppressed would refer to obtaining basic equality of representation, although Obama should be pressed to be more specific.

This can't be discussed reasonbly by use of code words like 'activist judges'.

By my definion of 'conservative (gradual, careful change)', the addition of Alito and Roberts has produced the most not-conservative , sudden and dramatic changes in my memory.

These terms have little meaning in law, apparently. It's what is in the heart. and how much you like the outcome, or not.

Personally I dont' like abrupt changes in law, no matter in which direction they go.
But I have to admit, that I can envision circumstances where I would go along for the sake of the end result.

We all carry a lot of stuff in the heart. and so do judges.

Unless we ask robots to be supreme court judges we are stuck with the individual bias good, bad or indifferent that comes with being a human being.

Barak Obama seems to want to bias his picks of judges towards the little guy and while I am not opposed to that the fact that he would openly and outwardly state that his intention is to look after the little man (whomever that might be) conncerns me greatly. Further reading of his writings reveals that the little man is one who cannot stand up to the bullies of the day.

This in essence reflects a predisposed position on his part to choose a scotus justice based upon a predetermined set of values that are obviously something that can be analyzed in a confirmation hearling.

Obama for me continually lays his cards on the table in advance and then tells you to beat his hand. I do not like that in negotiators because it implies a smugness and overwhelmingly confident position that the president of the United States rarely has.