Let us stipulate that Barack Obama is a man of the Left. He has learned to dulcify his liberalism with grandiloquent equivocations about “moving beyond our divisions” and “change we can believe in.” But Obama’s speeches are like Donne’s “gold to airy thinness beat”—without the mettle. He remains, at his core, the quintessential Hyde Park Man, a synthesis of Ivy League snobbery and machine politics. Not without reason did National Journal adjudge him last year’s most liberal member of the Senate.
That predisposition is particularly evident when it comes to the issue of judges. Perhaps because of his tenure as a lecturer in constitutional law or because he dedicated a chapter in his presidential primer, The Audacity of Hope, to “Our Constitution,” the one topic on which Obama has made no attempt to uphold his “post-partisan” façade has been the Supreme Court. On other issues, Obama may come before the American people clad in sheep’s clothing. But when it comes to the court, to echo Justice Antonin Scalia, “this wolf comes as a wolf.”
That is the consensus in conservative legal circles, but there are reasons to believe that, when it comes to the Supreme Court, an Obama presidency would not be the disaster many conservatives predict.
The case against Obama begins and ends with his own words: “when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the court. And part of the role of the court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.” In a similar vein, he has said when it comes to the handful of controversial cases on which the Supreme Court fractures along ideological lines, “the critical ingredient is supplied by what is in the judge’s heart.”
These sentiments are consistent with Obama’s opposition to the confirmation of Chief Justice John Roberts. At his confirmation hearing, Roberts stated his belief that “Judges are like umpires. Umpires don’t make the rules; they apply them.” Obama admonished Roberts for his detachment: “the issues that come before the court are not sports; they’re life and death. We need somebody who’s got 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.”
Most conservatives rightly recoil at such sentimentalism. Like Roberts, they believe a judge’s role is to “decide every case based on the record, according to the rule of law, without fear or favor.”
There’s a famous story of a similar disagreement between Justices Oliver Wendell Holmes and Learned Hand. As recounted by Robert Bork in The Tempting of America, after lunching together, “as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, ‘Do justice, sir, do justice.’ Holmes stopped the carriage and reproved Hand: ‘That is not my job. It is my job to apply the law.’” Holmes’s rule may be extreme—he certainly did not view it as absolute—but it is the better general rule.
If Obama’s position were only that judges should be capable of sympathizing with the poor as well as the rich, the weak as well as the strong, no one would cavil. But his statements imply something more than a desire for judges to weigh interests neutrally. He suggests that justice requires something more: the conscious preference of one party over another. For Obama, equality is not the province of all. As Curt Levey of the Committee for Justice acidly observed, when Obama speaks of the “weak” opposed by the “strong,” he “does not want judges to favor gun owners, unborn babies, white men challenging employers’ racial preferences, or property owners threatened by environmental regulations, no matter how much power they’re up against.”
Obama has not yet been asked which current justice he most admires, but based on what he has said and written, he seems to have an affinity for Stephen Breyer. In The Audacity of Hope, Obama praises Breyer’s theory of constitutional interpretation, which is based on a belief that the Supreme Court should promote democratic participation—dubbed “active liberty”—by deferring to Congress in all but the rare case in which federal legislation demonstrably conflicts with a right guaranteed by the Constitution.
Although this approach sounds innocuous, in Breyer’s hands it has been riddled with exceptions, which always seem to coincide with the liberal shibboleths of radical egalitarianism, an expansive right to privacy, antipathy to local decision-making, and opposition to the death penalty.
Like a sailor claiming to have discovered Atlantis, Breyer and the liberal majority expound on the wonders of these rights, but can’t point to them on the constitutional map. Obama is a great believer in these chimerical rights—witness his outspoken support for an inalienable right to partial-birth abortion—and it is unthinkable that he would appoint a justice who did not share his fantasy.
Why then should conservatives not be horrified by the prospect of an Obama presidency? The short answer is that, under the most likely scenario, his presidency will pass without a single liberal advance in constitutional law.
The weakest reason for optimism is that selecting good justices—meaning justices who consistently fulfill the hopes of the president who nominated them—has proven a pons asinorum for even the best presidents. Eisenhower had a dismal record; Reagan and Nixon had mixed results at best. While judges are more likely to move left than right over time, there seems to be a lodestone on the bench that subtly corrects deviations to either extreme.
We have seen this happen with current justice Anthony Kennedy and before him with Sandra Day O’Connor, who vacillated subtly between Right and Left to preserve an overall equanimity. Conservatives should not pin their hopes on this pattern holding for Obama appointees, but it is nonetheless an observable phenomenon, and it would not be a surprise to see President Obama’s best laid schemes gang agley. Fortunately, the case against despair rests on more than group dynamics.
The first real argument against pessimism is that the short list from which Obama is likely to draw holds surprisingly few horrors. Although he has hinted that he might look beyond the usual “academics or people who’ve been [on] the [lower] court” to “find people who have life experience and … understand what it means to be on the outside,” most liberal short lists dismiss this possibility as politically risky and contrary to the circumspection that Obama has displayed in his campaign.
Candidates most often mentioned are Judge Sonia Sotomayor (2nd Circuit), Judge Johnnie B. Rawlinson and Judge Kim McClane Wardlaw (9th Circuit), Judge Roger Gregory (4th Circuit), Dean Elena Kagan (Harvard Law), former Dean Harold Hongju Koh (Yale Law), former Dean Kathleen Sullivan (Stanford Law), Justice Leah Ward Sears (Chief Justice, Supreme Court of Georgia), Justice Leroy Rountree Hassell Sr. (Chief Justice, Supreme Court of Virginia), and Beth S. Brinkmann (chair of the Appellate Practice Group at Morrison & Foerster).
Identity politics is clearly still the summum bonum of the Democratic Party. There are seven women on this list, including two Hispanics and two African-Americans. Two of the men are also African-American, and one is Asian. Superficially, two or three of these candidates would change the face of the Supreme Court. But none is likely to change the balance of power.
In most controversial cases, the current court is balanced between four liberal and four conservative justices, with both sides vying for the pivotal fifth vote of Justice Kennedy. Purely by chance, the three most likely retirees—Justices Souter, Stevens, and Ginsburg—are the Court’s most liberal voices. For this reason, the best a Democratic president can hope to do is maintain the status quo, while the worst conservatives face is a missed opportunity. If one accepts that, over time, Democratic appointments to the court are inevitable, conservatives cannot realistically expect better than an exchange of like for like.
Finally, it is an open question how far Left a nominee could be and survive a confirmation battle. The most liberal candidates on this short list are academics, Deans Koh and Sullivan, who have long records of publication and advocacy that, while unremarkable within the academy, are radical by any other measure. Their opinions would be described as within the “legal mainstream” by a liberal media that is wont to confuse mainstream with Left Bank, but the American people usually recognize intellectual humbug and have no patience for it.
Even if the Democrats win a veto-proof Senate majority, the country will remain riven between liberals and conservatives, and any Democrat who believes that a narrow popular majority is a mandate for radicalism is likely to find his fortunes reversed at the midterm election. Democratic senators from red states will be particularly aware of their vulnerability, and alert to conservative issues that threaten to erode their shaky support—prepotent among which is the Supreme Court. Obama’s impassioned idealism will mean nothing to a senator whose job is on the line.
Of course, positing that two or three Supreme Court appointments would not be disastrous isn’t the same as supporting an Obama presidency. These considerations are meant only to mollify conservative fears, not expunge them. Whatever the outcome of the election, conservatives can take solace in the institutional and practical obstacles that will limit any president’s ability to effect meaningful change. While an Obama administration would deny Republicans an opportunity to shore up the court’s Right flank, his best efforts will not be enough to mount a serious counterattack. The center will hold; the blood-dimmed tide will not be loosed.
Howard Anglin is a lawyer in Washington, D.C.