Jeffrey Toobin's profile of Chief Justice, John Roberts (yes, the Chief Justice who mangled the oath of office at the inauguration) is not simply a fascinating portrayal of the man himself. It is also very revealing about President's Obama's own constitutional outlook. He is absolutely a constitutionalist. However, his view is that the constitution is a living, breathing document that must respond to and improve people's lives. Moreover, it a document designed to shift power from the strong to the weak. Jeffrey Toobin's piece summarises Obama's approach in Chief Justice Robert's confirmation hearings:
In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent 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,” Obama said. “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 . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “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,” the Senator said.A judge who grew up in the Bronx and believes that the impact of law matters as well as the letter of the law? Sounds ideal. That judge is Sonia Sotomayor. And she happens to be Hispanic and a 'she.' Let's see how she fares in the confirmation hearings but this has a good feel to it.
Post script: And here are some Congressional Quarterly talking points on the appointment.