Three years ago today the nation was halfway into 18 days of feverish speculation about whom President George W. Bush would name to replace Sandra Day O’Connor on the U.S. Supreme Court, with high drama and several major false rumors preceding the choice of now-Chief Justice John Roberts.
Next year at this exact time, odds are high that we’ll all be doing the same exercise, this time about whom President John McCain or President Barack Obama will choose for the high court. Liberal Justice John Paul Stevens will be 89 by then, and a couple of other justices sometimes seem to be getting tired of the grind.
If judges become a campaign issue, a clear sign as to whom it would benefit lies in Tuesday’s column in Politico that notes Obama “has said little from the stump about legal issues,” whereas McCain “has recently been more aggressive in offering his views of the law while campaigning.”
Even more indicative that Obama’s judicial stances are political losers was the odd sight late last month of Obama not just once but twice publicly embracing the legal positions of the conservative justices he has always opposed, while taking issue with the positions of the liberal justices he has held up as ideals.
Obama has a long record of supporting some of the most stringent gun control measures in the country, but he pronounced himself mostly satisfied with the high court’s decision that threw out Washington D.C.‘s handgun ban. One can assume he did so with an eye on the rural voters in Michigan, Ohio and Pennsylvania.
He also announced disagreement with the court’s decision outlawing the death penalty for brutal child rapists. Again, it was the liberal justices he has cited as models who ruled on the side he now claims to oppose.
The sight of Obama scrambling to avoid the less politically popular side of court issues will be a familiar one if some conservative strategists have their way. The simple fact is that not only do most Americans oppose the prototypically liberal idea of judges “legislating from the bench,” but a majority (or clear pluralities) also tend to support the policy results that accrue from conservative jurisprudence.
This is true not just on the “hot button” social issues, either – although it certainly is true for those. Most Americans are not utterly hostile to faith in the public square in the way that Obama-favored judges are. Most Americans, unlike Obama-favored judges, oppose partial birth abortion. Most Americans agree with conservative jurists, not Obama’s liberals, against judicially imposed homosexual marriage, for the right of the Boy Scouts to set their own membership rules, and against the attempt by government to use quasi-quotas for racial balances.
The conservative advantages are even greater on issues of law and order (“harmless error” by police officers) and on private property rights — especially against government seizure of private property for the use of other, wealthier private interests.
Even on the death penalty, a tough moral issue if there ever were one, the public likely has no patience for bizarre decisions such as the one outlawing such sentences for child rapists. The death penalty per se is explicitly referenced in the Constitution, and the public rightly has a hard time comprehending how court liberals can call it “cruel and unusual” punishment when applied to a child rapist but not cruel and unusual when applied to somebody who commits treason.
The ordinary citizen tends to react negatively to such acts of judges substituting their own moral judgments, unmoored from any constitutional text, for those of elected legislatures. Yet Obama is on record specifically wanting judges whose primary qualifications are the right “heart” and “empathy” for various groups of society’s supposed victims.
One can look at the Constitution in vain, of course, for the words “heart” or “empathy.” There was a time when such things were the province of the people’s representatives, while judges concerned themselves with the law.
One year from now, odds are that the whole nation will be debating such issues in the course of considering a Supreme Court nominee. But the public will get its most direct ability to influence that choice not then, but during this year’s campaign to choose the president who in turn will make that nomination.
Quin Hillyer is associate editorial page editor of the Examiner. He can be reached at [email protected].
