Image: Then-Supreme Court Chief Justice nominee John Roberts, left, meets with then-Sen. Barack Obama, D-Ill.
Charles Dharapak  /  AP
Then-Supreme Court Chief Justice nominee John Roberts, left, meets with then-Sen. Barack Obama, D-Ill., in Obama's office on Capitol Hill in Washington, in 2005.
updated 5/17/2009 1:29:32 PM ET 2009-05-17T17:29:32

As a senator, Barack Obama said President George W. Bush's Supreme Court nominees John Roberts and Sam Alito were clearly qualified. He voted against them anyway.

In a series of votes and speeches more than three years ago, Obama strongly defended a senator's right to oppose high court nominees because of their philosophical and political views, not just on the narrower grounds of character and temperament.

Republican senators may cite Obama's actions if they decide to make a serious stand against the current president's eventual choice to replace retiring Justice David Souter.

But conservatives will find less comfort in the more important details of Obama's comments from 2005 to 2007 about the Supreme Court. That's when he outlined the type of justice he wants: someone with a heart as well as brains, who empathizes with the downtrodden and is wary of the establishment's power.

His language worries conservatives
Obama used almost exactly the same language this month. "I will seek someone who understands that justice isn't about some abstract legal theory," he said. He wants someone with "that quality of empathy, of understanding and identifying with people's hopes and struggles."

Such language worries many conservatives.

If a justice relies on empathy, then "politics, preferences, personal preferences and feelings might take the place of being impartial and deciding cases based upon the law," GOP Sen. Orrin Hatch of Utah said recently on ABC's "This Week."

The key question for nominees is will they be "fair to the rich, the poor, the weak, the strong, the sick, the disabled?" asked Hatch, a longtime member of the Senate Judiciary Committee, which reviews Supreme Court nominations.

As a senator, Obama said he felt Bush's nominees were too quick to side with the rich and powerful.

Roberts, now chief justice, was qualified and talented enough for the court, then-Illinois. Sen. Obama said in a September 2005 speech. But Roberts, he said, "has far more often used his formidable skills on behalf of the strong in opposition to the weak."

The young senator said he probably would have no trouble with Roberts' rulings in 95 percent of the high court's cases. But "what matters on the Supreme Court is those 5 percent of cases that are truly difficult," when "legal process alone" will not suffice, Obama added.

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"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," he said. "In those difficult cases, the critical ingredient is supplied by what is in the judge's heart."

Hatch said that emphasis on a nominee's "politics, feelings and preferences" raises red flags. "Those are all code words for an activist judge, who is going to, you know, be partisan on the bench," Hatch said.

Obama and his fellow Senate Democrats were in the minority in 2005, and some liberal groups implored them to try to block Roberts with a delaying tactic known as a filibuster. Obama called the idea "a quixotic fight" that he would not support.

Futile Democratic effort to block Alito
Four months later, however, he joined a futile Democratic effort to block Alito's confirmation with a filibuster.

"I have no doubt that Judge Alito has the training and qualifications necessary to serve," Obama said in a January 2006 speech in the Senate chamber. But he said he was "deeply troubled" because Alito as a federal judge "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights."

As a presidential candidate, Obama continued to stress the plight of people who lacked advantages when dealing with powerful people and institutions.

In November 2007, he said the Supreme Court should "protect people who may be vulnerable in the political process: the outsider, the minority, those who are vulnerable, those who don't have a lot of clout."

"If we can find people who have life experience, and they understand what it means to be on the outside, what it means to have the system not work for them, that's the kind of person I want on the Supreme Court," he said.

At a different campaign appearance that year, Obama said: "We need somebody who's got the heart to recognize, the empathy to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor or African-American or gay or disabled or old."

Because there are only 40 GOP senators today, Republicans have little chance of blocking Obama's eventual nominee. That hasn't stopped conservative groups from urging senators to sharply question the judicial philosophies of the president and his nominee.

For example, the Committee for Justice says on its Web site: "The next Supreme Court nominee must be asked whether they share the president's decidedly activist view that judges should consider, not just the law and facts, but also empathy for certain classes of people, including African-Americans, the poor, gays, and the disabled."

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