The next President & Appointing Judges

by Stuart Taylor Jr.

Saturday, July 26, 2008





Apart from the Supreme Court, the next president will fill a steady stream of vacancies–and perhaps a batch of newly created seats–on the federal District and Appeals courts. The cumulative impact of those choices may well be more important than any one Supreme Court appointment, although far less visible.


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.


Replacing one or more of the current liberals with such a figure would solidify the liberal bloc. And 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.




On abortion, Obama assailed the Court’s April 2007 decision upholding the congressional ban on “partial-birth” abortion as a dramatic departure from precedents protecting a woman’s right to choose. He also warned that “conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade.”


The anti-abortion McCain said: “I’m very happy about the decision, given my position on abortion. ‘Partial birth’ is one of the most odious aspects of abortion.”




McCain has been consistent in championing broad gun rights and the death penalty; Obama was not until after he had wrapped up the nomination and turned to courting centrist voters. Obama’s general statements on judicial appointments suggest that he would choose new justices and judges who would take the liberal side on such issues.




On court-ordered same-sex marriage, Obama’s campaign said that he “respects” the California Supreme Court’s decision in May requiring the state to recognize gay and lesbian marriages. This contrasted with Obama’s previous position that he opposed gay marriages and supported “civil unions”–the same distinction that the court struck down. Obama later denounced as “divisive and discriminatory” a ballot initiative designed to overturn the gay-marriage decree.


McCain’s campaign said that he “doesn’t believe judges should be making these decisions,” and he welcomed the ballot initiative as giving “the people of California … the opportunity to decide … the definition of marriage, rather than having that decision made by judicial fiat.”




The contrast between them was particularly striking when they reacted to the Court’s 5-4 decision on June 12 that Guantanamo detainees have rights to full federal judicial review of their petitions for release–a strong rebuff to Bush. Obama praised the liberal justices (plus Kennedy) for “an important step toward re-establishing our credibility as a nation committed to the rule of law.” McCain condemned them for “one of the worst decisions in the history of this country.”



The liberal nightmare (and conservative dream) is McCain replacing one or more aging liberals with conservatives who proceed to overrule or hollow out Roe v. Wade and other liberal precedents; throw gay rights into reverse; discard the constitutional right to privacy; outlaw all racial preferences and school integration programs; narrow the reach of civil-rights protections for women, minorities, and disabled people; bless virtually unrestricted government funding of religious schools and sponsorship of crosses and other religious symbols on public property; stop shrinking and start expanding the death penalty; mow down gun control laws; roll back the four decisions since 2004 that have checked Bush administration efforts to expand presidential power in the name of fighting terrorism; and make it ever harder for consumers and workers to sue businesses.



The conservative nightmare (and liberal dream) is an Obama Court requiring taxpayers to fund essentially unlimited abortion rights throughout pregnancy; ordering all 50 states to bless gay marriage; expanding and perpetuating the use of racial preferences far beyond the 25-year phase out suggested by the justices five years ago; prohibiting tuition vouchers for religious schools; stripping “under God” from the Pledge of Allegiance; banning the death penalty; striking down the new federal wiretap law; expanding judicial oversight of military detentions, CIA interrogations, and perhaps other operations worldwide; opening the floodgates to big-dollar lawsuits against business; eroding property rights; and perhaps creating new constitutional rights to physician-assisted suicide, human cloning, and massive government welfare and medical care programs.


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