Blog - Commentary

Judging the judges

As Barack Obama kicks off his second presidential term, US lawyers will be anxiously gauging his approach to Supreme Court bench appointments

Obama: An eye on Supreme Court appointments

Obama: An eye on Supreme Court appointments

WASHINGTON DC -- On the anniversary of the birth of civil rights leader Martin Luther King, Barack Obama was sworn in for his second term as US President. His inauguration speech made a case for a strong middle class protected by the rule of law, including proscription against discrimination based on race, gender, national origin or sexual orientation. Mr Obama stressed the importance of regulation to protect the financial system and consumers and the need for government intervention targeted at global warming.
If the speech was a road map for his second term, all routes must clearly lead to efforts to address rulings by the judiciary that have eroded protections afforded to the middle class. Since Mr Obama took office, rulings by the country’s Supreme Court have dealt blows to employees’ rights to address workplace discrimination on a class basis, and the right of consumers to have their cases heard in court as opposed to being compelled to arbitrate.

Corporate protectionism

In addition, the court has invoked the first amendment of the US constitution as justification to protect the interests of large corporations. In Citizens United v Federal Election Commission, the court struck down legislation regulating a corporation’s right to use its monies to influence Federal elections, while in Sorrell v IMS Health, it struck down legislation regulating the right of pharmaceutical companies to purchase prescription data for marketing purposes.
These rulings signal a shift by the courts towards corporate protectionism. If the president is true to his message, he must think carefully about appointing judges who will protect the interests of the middle class.
Ironically, the piece of legislation signed by Mr Obama shortly after he took office for his first term was the Lilly Ledbetter Fair Pay Act, which erased a Supreme Court decision curtailing the statute of limitations for victims of pay discrimination. Ledbetter should be a reminder to the White House that it can concentrate efforts on the appointment of judges who will uphold the law, or it can spend time pressing corrective legislation. The razor thin affirmation by the Supreme Court of the Obama Health Care Bill should be a further reminder of the importance of the courts to the president’s overall agenda.

Primed for compromise

In the days ahead, judicial observers will be watching for Mr Obama’s appointments to the US Court of Appeals for the District of Columbia circuit, where many cases challenging agency regulations are filed.
In his last term, Republicans were able to delay the president's judicial nominations. This time around, after losing ground in their fight to re-take the Senate and a disappointing loss in the presidential election, Senate Republicans may be primed for compromise that will pave the way for numerous judicial appointments at the District Court and Federal Court levels.

Posted by:


24 January 2013

Editor's picks


Also read...

NRF turns to duo for renewable energy

Norton Rose Fulbright has expanded its renewable energy capabilities in Texas with the addition of McGuireWoods duo.