From Slate.com By Doug Kendall and Dahlia Lithwick on July 9, 2008:
"Barack Obama's rightward drift in recent weeks has hardly gone unnoticed or unrewarded. What's most fascinating about his efforts to appeal to the American center is the extent to which Obama, as a constitutional law professor and Harvard Law Review president, has repeatedly chosen the Bill of Rights as his vehicle for doing so. It's not an overstatement to say that in the past month Obama has tugged the First, Second, Fourth, and Eighth amendments to the center. Not a day goes by, it seems, without a constitutional wink to the right on guns (he thinks there is an individual right to own one), the wall of separation between church and state (he thinks it can be lowered), the Fourth Amendment prohibition on warrantless wiretapping (he's changed his position on FISA), and on the death penalty for noncapital child rape cases (he thinks it's constitutional) as well as a possible shift this week on the right to abortion (which could further limit the reach of Roe v. Wade). Such accommodations are not all unexpected. Some of these positions (like his stance on capital punishment) have long been a part of his unorthodox constitutional thinking. Others (such as the hair-splitting on guns) are politically expedient. Nor are such nuanced views unwelcome. Obama is well aware that the ways in which liberals talk about the Constitution are sometimes mired in 1960s mushiness and feel-goodery that no longer resonates with the American public.
But Obama appears to be compromising on the wrong constitutional issues while backing away from fights on the right ones. A liberal re-examination of constitutional philosophy need not involve a capitulation to conservative values. Obama can certainly move to the right on gun-control policy or support a limited death penalty if politics demand that he do so. But he should not, in so doing, shift to the right on the Constitution itself.
Consider the fact that Obama spent the final days of the Supreme Court term celebrating conservative constitutional outcomes rather than calling out dubious conservative methodology. Who was better situated to chide the court's conservatives for what sure seems to be an activist ruling that saved Exxon $2 billion in damages stemming from the Valdez oil spill? Just as Obama was reiterating his support for guns (certainly a tenable liberal position these days), he was missing an opportunity to turn the conversation to another 5-4 case decided that day—in which the court struck down the so-called millionaire's amendment—an important part of the McCain-Feingold campaign-finance law. That case was a constitutional minefield for John McCain: His dream judges ruled an important portion of his most significant legislative accomplishment unconstitutional. But all we heard were crickets chirping in Chicago.
Obama also needed to do far more than he did to highlight McCain's shocking assertion that the court's ruling in the Guantanamo detainees' case was one of the "worst in the nation's history." As George Will effectively chronicled, that was a patently ridiculous statement that revealed a deep misunderstanding of both the law and the courts. Had Obama directly addressed McCain and—by extension—McCain's model judges on that issue, it would have gone a long way toward assuring Americans that in his administration the Bill of Rights will not be a luxury reserved only for the sunny days.
But perhaps the most important fight over the Constitution facing Obama is not about the Constitution itself, but over the composition of the Supreme Court. McCain has signaled that he plans to campaign hard on the issue—taking numerous opportunities to excoriate "judicial activists" and promise more jurists like Chief Justice John Roberts and Samuel Alito. McCain pledges that he wants to appoint only judges who would "strictly interpret the Constitution of the United States" (whatever that means). And Obama should welcome this debate; it's one he should win hands down, but he won't be able to capitalize on his strengths unless he can change the way progressive candidates talk about judging and the Supreme Court.
Obama's scattered statements so far on his philosophy for appointing Supreme Court justices instantly reveal the problem. In response to one of McCain's stemwinders on liberal activist judges, Obama started with the boilerplate argument that he will nominate judges who are "competent and capable" and who "interpret the law." So far, so good. He then shifted to "those 5 percent of cases or 1 percent of cases where the law isn't clear." In those cases, Obama asserted, judges must rely on "his or her own perspectives, his ethics, his or her moral bearings," and thus he wants judges who are "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being—from being dealt with sometimes unfairly, that the courts become a refuge."
Remarks such as these make Obama sound like the careful law professor he's been in the past, patiently explaining to his students why it is inevitable in some cases that judges will rule based on their gut leanings. But this is precisely the wrong way to talk to Americans about judging, and it's guaranteed to turn Obama's advantage into a disadvantage. Inevitable or not, Americans just don't like it when judges rule based on their personal political preferences rather than being guided by the Constitution and the law. A recent Rasmussen poll tested, side-by-side, the McCain and Obama messages about the court. The results: 69 percent of Americans agreed with McCain's message; only 41 percent agreed with Obama's. Obama will lose the war over the Constitution if he keeps pushing, as he's done, for judges with "empathy." Voters see that as code for "latte-sipping, out-of-touch, smarty-pants elitism."
Obama doesn't have to stumble here. Nor should he maintain the curious silence that leaves his supporters wondering about his constitutional values. A growing number of Americans believe the Roberts Court is too conservative. Polls indicate that the public likes progressive judicial results: The public responds favorably to questions asking whether judges should strongly protect civil rights and civil liberties, rule for the powerless over the powerful, and ensure broad access to justice. Put simply, Americans want to live in Justice Stevens' America, not in Clarence Thomas'.
If McCain genuinely thinks it's smart politics to run against the Warren Court in 2008, Obama simply needs to run against the Roberts Court. He must promise to nominate Supreme Court justices who will protect civil liberties, civil rights, and ensure equal access to courts and justice. He needs to talk and talk about these issues not because these are tender, liberal values he wants his judges to share, but because they are values enshrined in the Constitution, values that have been corroded and neglected in recent years.
When Obama talks about nominating justices who will protect the powerless as much as the powerful, he shouldn't just cite pregnant teenage mothers but instead quote the preamble, which lists establishing justice as a pre-eminent goal of the Constitution, and the words "Equal Justice for All" enshrined in marble over the Supreme Court's entrance. When he talks about courts protecting civil rights, civil liberties, and equal protection, he should explain that we fought a Civil War over these principles and we amended the Constitution to enshrine them in our founding document. In recent weeks, it's become easy to forget that Obama is campaigning as a visionary. He needs to carry this over into how he talks about the Constitution and the Supreme Court rather than falling back into careful, hyper-technical law professor mode.
By rooting the results he seeks from the judiciary in the words of the Constitution—by marrying method to results, rather than divorcing these concepts—Obama can mobilize progressives and also reach beyond his base in speaking about what's at stake at the Supreme Court. By meandering to the right on some of the most important provisions in the Bill of Rights while mumbling about appointing judges who rule based on their "own perspectives," he risks alienating both groups and weakening the Constitution right along with his political prospects.