From The Jury

Courting Disaster With Obama? Hardly.

The prospect of a Barack Obama presidency seems to be driving the conservative legal establishment around the bend.???Nothing less than the very idea of liberty and the rule of law are at stake in this election,??? Northwestern University law professor and Federalist Society co-founder Steven Calabresi wrote in the Wall Street Journal this week.The constitutional horrors of an Obama presidency, Calabresi said, could include ???a federal constitutional right to welfare; a federal constitutional mandate of affirmative action wherever there are racial disparities, without regard to proof of discriminatory intent; a right for government-financed abortions through the third trimester of pregnancy; the abolition of capital punishment and the mass freeing of criminal defendants...???Writing in National Review Online, Ed Whelan of the Ethics and Public Policy Center was equally alarmist. ???Simply put, the survival of the historic American experiment in representative government will be in serious jeopardy if Barack Obama is our next president,??? he warned.Wow, and I thought he was just a socialist.The role of the courts and the impact of the next president is one of the most under-covered stories of the campaign. But it???s easy to exaggerate the impact of the next president, even if you aren???t imagining the ghost of Earl Warren lurking under your bed. As Terry Eastland, who has managed not to succumb to the fevered worries of his fellow conservatives, noted recently in the Weekly Standard, a Democratic president would probably simply be doing ???maintenance work??? on the Supreme Court, at least in his first term, replacing one liberal justice with another. ???Obama couldn't create a liberal majority unless at least one conservative, or man-in-the-middle [Anthony M.] Kennedy, were to step down, and that looks doubtful, at least in the next four years.???At the same time, I think Eastland understates the effect of a John McCain presidency when he says that, given a Democratic-controlled Senate, ???actually replacing liberals with conservatives would be far more easily said than done.??? A robust Democratic majority would curtail a President McCain, but that does not mean that McCain appointees would be the same as those of President Obama. A McCain appointee to replace, say, Justice John Paul Stevens, 88, would almost certainly shift the court to the right.So how much do conservatives have to worry about the court in an Obama presidency?Certainly, many liberal legal activists believe that President Bill Clinton squandered his chance to reshape the federal courts and would press Obama to be more ideological. Obama chose not to join the Gang of 14 a few years ago to forestall Senate filibusters. He voted against both of President Bush???s nominees, John Roberts and Samuel Alito --although The Post reported that he had to be talked out of voting for Roberts.Exhibit A in the conservative indictment of Obama is his statement to Planned Parenthood in July 2007 that ???we need somebody who's got the heart, 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. And that's the criteria by which I'm going to be selecting my judges."This stance, Calabresi said, is tantamount to requiring ???the appointment of judges committed in advance to violating??? the oath they take to dispense justice impartially. But as University of Wisconsin law professor Ann Althouse, no wild-eyed liberal, pointed out, Obama ???is not saying that judges should distort the meaning of law so that people they empathize with can win cases. He's saying judges need to understand the realities of the world, most significantly, what life is like for people.???Exhibit B is a 2001 radio interview in which Obama made the entirely unremarkable observation that the Warren Court "never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society." This is supposed to be evidence of Obama???s secret radicalism. ???Is his provision of a 'tax cut' to millions of Americans who currently pay no taxes,??? Calabresi asked, ???merely a foreshadowing of constitutional rights to welfare, health care, Social Security, vacation time and the redistribution of wealth????What???s so wonderful about this attack is how delicately Obama???s critics choose to pick the cherries. Obama said he agreed, as the Supreme Court ruled this year, that the Second Amendment protects an individual right to bear arms. He disagreed with its ruling invalidating the death penalty for child rape.Obama???s discussion of the constitution in his book ???The Audacity of Hope??? is distinctly nuanced, expressing qualms about liberal overemphasis on courts. ???I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy,??? he wrote.In an interview with the Detroit Free Press this month, Obama described the court as an ???institutionally conservative??? organization reluctant to get out ahead of public opinion. The Warren Court did, appropriately so, Obama said, ???because the political process didn???t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.??? However, he said, ???I would be troubled if you had that same kind of activism in circumstances today.???I don???t doubt that Obama judicial nominees would not be to conservatives??? liking. Fair enough. I haven???t liked President Bush???s, and I doubt I???d like President McCain???s any better. That???s what elections are about, and it???s why I wish there had been more campaign discussion about the role of the court.But the suggestion that electing Obama threatens the rule of law, representative democracy and liberty itself is so unhinged it is hard to take seriously, except as a measure of how worried some people are about their party losing its grip on power.

Filed by admin at October 31st, 2008 under News