Sunday Forum: High court, high stakes
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One of the most lasting parts of a president's legacy is the appointment of Supreme Court justices. While a president serves for four or eight years at the pleasure of the American people, his appointed justices oftentimes serve for decades, unelected and untouchable.
Although once called the "least dangerous branch" of government by Alexander Hamilton, the judiciary has potentially become the most dangerous branch, deciding and imposing a multitude of social and policy views through its legal interpretations. As the final arbiter of most disputes, the court's decisions largely are unreviewed and unreviewable. There is no check, no balance and no democratic input from the electorate. A president's nominee needs only the confirmation of a majority of senators to serve for a lifetime.
The next president is likely to have one and probably two or more Supreme Court vacancies to fill. Justice John Paul Stevens, a Ford appointee, is 88; five more justices are in their 70s or will be by the time the next president is inaugurated. This year's presidential election, therefore, is about much more than just the next four years, but about the direction of American social policy for the foreseeable future.
The Supreme Court, over the last couple of years, has ruled that there is a constitutional right to engage in homosexual sex, that Congress' bipartisan restrictions on online pornography were unconstitutional and that alleged noncitizen terrorists who are detained on foreign battlefields have rights under our Constitution. These issues and others like them -- for example, the constitutionality of the Pledge of Allegiance, which contains the words "under God," the ability of states to restrict late-term or partial-birth abortions and the military's conduct of the war on terror -- will continue to come before the court and, in part, will be decided by the next president's appointees.
When it comes to the Supreme Court, there is a clear difference between Sen. John McCain and Sen. Barack Obama.
Mr. McCain recognizes the dangers of unelected judges driving social policy based on their own personal beliefs. As he has explained, our democratic freedom is curtailed by such arbitrary acts and therefore "a judge's decisions must rest on more than his subjective conviction that he is right, or his eagerness to address a perceived social ill." Mr. McCain has vowed to appoint justices who follow that view of judicial restraint.
Mr. Obama, on the other hand, has stated that he will choose his judicial nominees based on their "heart" and "compassion." In particular, he will appoint justices who have "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."
Make no mistake, Mr. Obama's nominees must be willing to use that "heart" to make decisions. Mr. Obama has noted that he would not have appointed Justice Clarence Thomas, who is African American and grew up poor in the segregated south of the 1950s, because he disagreed with Justice Thomas's restrained interpretation of the Constitution. Mr. Obama's justices must have subjectively liberal views and be willing to impose them.
The senators' voting records bear out this distinction.
Mr. McCain supported the appointment of Chief Justice John Roberts. As Chief Justice Roberts explained during his confirmation hearing, the role of a judge is to call balls and strikes, not to legislate from the bench. He believes that judges apply rules, not make them.
Mr. Obama opposed Chief Justice Roberts' appointment. Mr. Obama believed that Chief Justice Roberts had the intelligence, temperament and qualifications to sit on the Supreme Court, but that he appeared to lack a "breadth of empathy" and did not have the "heart" Mr. Obama believed was necessary.
With potentially two or more justices to appoint, Mr. Obama would make the Supreme Court decidedly more liberal and more of a policy-making institution. Mr. Obama has one of the most liberal Senate voting records in recent history and every indication is that he would choose justices with a similar viewpoint and the will to impose it on the country.
With a Democrat-controlled Senate, Mr. Obama's nominees virtually would be assured of being appointed without thorough vetting. A vote for Obama is not only a vote for change in the presidency, but also a vote for a more activist judiciary and for more liberal social policies in America for decades or more. This is not the type of change that America deserves.
First Published October 12, 2008 12:00 am