"Among the
starkest contrasts between John McCain and Barack
Obama is the dramatic difference in their promised
approaches to judicial appointments, especially to the
closely divided Supreme Court."
So begins the
cover story in this week's National Journal,
which analyzes what an Obama and McCain Supreme Court
would look like. We focus here on the article's
observation that Barack Obama "exudes determination to
move the [Supreme] Court sharply to the left." That
warning has been heard before, but the stature and
nonpartisan reputation of the article's author, former
New York Times Supreme Court reporter Stuart
Taylor, gives the warning added credibility. Taylor is
no conservative.
The virtual
certainty of an increased post-election Democratic
majority in the Senate means that Obama is "far more
likely [than McCain] to get the Senate to confirm just
about anyone he chose," says Taylor. As a result,
"The door would
be open for Obama, if he were so inclined, to appoint
the kind of crusading liberal that the Court has not
seen since Justices William Brennan and Thurgood
Marshall retired in 1990 and 1991 - or, for that
matter, to appoint Hillary Rodham Clinton if she
wanted the job."
Taylor notes that
Obama might "disappoint" some of his most fervent
supporters by appointing a "moderate-liberal
consensus-builder" to the Court. But that possibility
rings hollow when Taylor reminds us that Obama cited
former Chief Justice Earl Warren, the father of liberal
judicial activism, "as a model for the kind of justice
he would pick." If we take Obama at his word, a likely
pick would be Second Circuit Judge Sonia Sotomayor, who
Taylor lists among "the most-talked-about prospects" for
an Obama Supreme Court. A bright but ultra-liberal
Hispanic woman, Sotomayor would allow Obama to check
three boxes with a single pick. The mere mention of her
name brings fear to in-the-know conservatives.
Were Sotomayor to
replace 88-year-old liberal Justice John Paul Stevens,
the Court's shift to the left would be muted. However,
"[A] Scalia
or Kennedy retirement would enable Obama to move the
Court dramatically to the left, creating a solid
liberal majority for the first time since Chief
Justice Earl Warren retired in
1969."
That very real
possibility should frighten conservatives all the more
when they consider that
1) by the end of
an 8-year Obama presidency, Justices Scalia and Kennedy
would be 80 years old, an age most men never reach,
and
2) given the damage the Supreme Court has done to
the rule of law since 1969, imagine what the Court would
do if it regained a "solid liberal majority."
In fact, not much
imagination is necessary, because Taylor lays out the
possible agenda of an Obama Supreme Court. For easy
reference, we have transformed Taylor's "conservative
nightmare" scenario into a Top Ten List (while retaining
his wording).
Top Ten Things
to Expect from an Obama Supreme Court:
#10 -
expanding and perpetuating the use of racial
preferences
#9 - creating new constitutional
rights to physician-assisted suicide and human
cloning
#8 - expanding judicial oversight of
military detentions and CIA interrogations
#7 -
prohibiting tuition vouchers for religious schools
#6
- banning the death penalty
#5 - requiring
taxpayers to fund essentially unlimited abortion
rights
#4 - creating new constitutional rights to
massive government welfare and medical care
programs
#3 - stripping "under God" from the Pledge
of Allegiance
#2 - eroding property rights
#1 -
ordering all 50 states to bless gay marriage
Of course, this
"conservative nightmare" is a "liberal dream" for
Obama's most enthusiastic supporters.
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