Obama: No Originalist Judges

In an interview with NBC News, Sen. Barack Obama provided a glimpse into how he would select judges for the Supreme Court if he was elected president. Obama indicated that he would have a litmus test for judges; namely, they must believe in a right to "privacy," which Obama said is "implied by the structure of the Constitution."

"Well, look, I think that you -- what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, who actually knows a lot of the potential candidates for Supreme Court on the right as well as on the left 'cause I've taught with them or interacted with them in some way -- I can tell you that how a Justice approaches their job, how they describe the path of interpreting the Constitution, I think can tell you a lot.

And so my criteria, for example, would be -- if a Justice tells me that they only believe the strict letter of the Constitution -- that means that they possibly don't mean -- believe in -- a right to privacy that may not be perfectly enumerated in the Constitution but, you know, that I think is there."

No originalist judges need apply.

The right to privacy is a code word for abortion rights. The focus of liberal jurisprudence since Roe v. Wade first conferred the right to an abortion has been the protection of that "right," which draws from the "right to privacy" enumerated not in the Constitution, but in the 1965 Griswold v. Connecticut decision of the Supreme Court. In that decision, the Court famously held that the rights in the Constitution have, "penumbras formed by emanations from those guarantees that give them life and substance." In other words, the text of the Constitution does not have the plain meaning that the words would otherwise imply. It is a formulation that allows liberal jurists to find any "right" that they can think of in the Constitution. And one with which Sen. Obama appears to agree.