What Kind of Supreme Court Will We Have in 2012?

On the issue of who they would appoint to the Supreme Court John McCain and Barack Obama could not have more radically different views about what a justice should do on the highest court. We can thank Rick Warren for helping to make their differences starkly clear when he asked both men which current justices they would not have chosen if they had been the president. (If you think about this, the question is brilliant, as were many that Warren asked in that Saddleback Forum.)

Obama said that he would not have appointed Clarence Thomas, Antonin Scalia, John Roberts and Samuel Alito (he voted against the last two in the Senate). McCain said that he would not have appointed John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer (he voted for Roberts and Alito in the Senate).

Besides the usual debates about Roe vs. Wade (abortion), there is much more involved in these answers than many people realize. McCain says that he opposes “judicial activism” by federal judges. Obama has previously criticized the Court’s lack of upholding federal funding for partial-birth abortion. He has also referred to appointing judges who have “empathy,” which means they would uphold abortion on demand no matter what case comes before them.

CNN’s Wolf Blitzer had a discussion with Barack Obama about this issue. Here is the transcript:

Blitzer: So, what would be your criteria?

Obama: Well, I think that my first criteria is to make sure that there are people who are capable and competent, and that they are interpreting the law. And, 95 percent of the time, the law is so clear, that’s its just a matter of applying the law. I’m not somebody who believes in a bunch of judicial lawmaking. I think . . .

Blitzer: Are there members, justices right now upon whom you would model, you would look at? Who do you like?

Obama: Well, you know, I think actually Justice Breyer, Justice Ginsburg are very sensible judges. I think that Justice Souter, who was a Republican nominee, is a sensible judge.

For the record the two judges that Barack Obama likes the most were recently on the short end of a 7-2 favorable decision on criminal penalties for promoting child pornography. These two judges opposed penalties.

In Kelo v. New London, Justice Breyer joined Souter and Ginsburg to rule that local governments can take away people’s homes in order to give them to private developers under the principle of eminent domain.

And in Boy Scouts of America v. Dale Obama’s favorite justices rejected the argument that a private organization like the Boy Scouts of America should be allowed to set its own standards of conduct for the leaders who influence the scouts. Thus the Boy Scouts could not bar openly gay scoutmasters. Look, you can be very tolerant of gays, and even support their rights to various legal protections, without forcing a private organization to use them as the teachers of children. The issue here was not gay rights, which I actually support legally, but the First Amendment's freedom of association. This is “rewriting” the Constitution if ever there was such an illustration.

Obama knows quite a bit about the law. He was once a law professor at the University of Chicago. In The Audacity of Hope Obama wrote that Justice Scalia believes “that the original understanding [of the Constitution] must be followed, and that if we strictly obey this rule, then democracy is respected.” Obama then goes on to write that this notion is absurd: “[I]t is unrealistic to believe that a judge, two hundred years later, can somehow discern the original intent of the Founders or ratifiers.” He adds, so that his idea cannot be missed: “Ultimately, I have to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”

Make no mistake about this. These two candidates have radically different views of the basis of law in the United States. One, John McCain, has argued for years for a fairly strict reliance upon “original intent” while the other, Barack Obama, is a radical activist in his view of the law. The law is an evolving concept for Obama. This underscores what I have been saying to friends for some months now, that Bill Clinton was our first "baby-boom" president and Barack Obama will be our first "post-modern" president.

My statements are non-partisan and factual. I wonder, having said this, how much this issue really matters to most Americans. It matters less to people under 40 since large numbers of them embrace a post-modern way of thinking about law and truth already. My guess is that in the end it matters to about 20% of us, 10% on the right and the other 10% on the left. Most people are content to let things go as they will go regardless of such issues. I am persuaded that “activist” judges have done serious harm to the social, moral and political foundation of the nation. I am convinced, therefore, that this issue really, truly matters a great deal.

Since slavery was supported by the Supreme Court in 1857, and then struck down by two amendments following the Civil War, who says we cannot reverse this decision again if certain judges are inclined?  You can say, “No way!” I could argue that in the present context you are right. But I would remind you that in Germany, when the left failed and the country went into economic and social chaos, the far right did exactly this with regard to many issues that eventually led to the slaughter of millions. Whether it is the far left or the far right, both are dangerous to the well-being of our republic. We should be very careful about how we handle our founding documents when it comes to the method we use to interpret the meaning of law.