{"id":54366,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/what-kind-of-justices-might-a-president-obama-appoint-senator-obamas-reactions-to-recent-supreme-court-decisions-show-that-the-answer-may-not-be-easily-predictable.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"what-kind-of-justices-might-a-president-obama-appoint-senator-obamas-reactions-to-recent-supreme-court-decisions-show-that-the-answer-may-not-be-easily-predictable","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/what-kind-of-justices-might-a-president-obama-appoint-senator-obamas-reactions-to-recent-supreme-court-decisions-show-that-the-answer-may-not-be-easily-predictable.html","title":{"rendered":"What Kind of Justices Might a President Obama Appoint? Senator Obama’s Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable"},"content":{"rendered":"\n
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What Kind of Justices Might a President Obama Appoint? Senator Obama’s Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable<\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS <\/h2>
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Thursday, Jul. 3, 2008<\/td>\n\n <\/tr>\n <\/table>\n\n\n\n\n

Now that the Supreme Court has erupted, as it does every year, with a set of end-of-term blockbuster opinions, political pundits have started focusing on the potential consequences of the presidential election on the future of the Supreme Court. Interestingly, however, Barack Obama\u2019s reactions to these opinions have rendered predictions as to what kind of Justices he might appoint much more of a guessing game than one might previously have thought. While John McCain clearly will be toeing the party line, Obama has proved more independent-minded.<\/p>\n\n \n\n\n

McCain\u2019s Views on the Court\u2019s Decisions: Exactly What One Might Have Expected<\/strong><\/p>

\nJohn McCain has made his position abundantly clear. In an attempt to invigorate the Republican Party\u2019s conservative base, he has pledged to fill any Court vacancies with justices in the mold of Chief Justice John Roberts or Justice Samuel Alito \u2013 meaning rock-solid conservatives likely to be opposed to Roe v. Wade<\/i>. <\/p>

\nThis vow is entirely consistent with McCain\u2019s record of supporting all of President Bush\u2019s appointments to the bench, as well as with McCain\u2019s public reactions to the big end-of-term decisions. Aligning himself with both Roberts and Alito, McCain decried the decisions granting Guantanamo detainees access to habeas corpus<\/a><\/strong> and barring the death penalty for child rapists<\/a><\/strong>, while praising the Second Amendment decision<\/a><\/strong> recognizing an individual right to bear arms and striking down the DC handgun ban.<\/p>

\nObama: Not the Knee-jerk Liberal Republicans Had Predicted<\/strong><\/p>

\nMcCain\u2019s campaign has tried hard to contrast his judicial politics with those of Barack Obama, regularly declaring that Obama, if elected, would appoint to the Court wild-eyed liberals who want nothing better than to legislate their own moral and ideological agenda from the bench. <\/p>

\nBut Obama has largely confounded expectations, and Republican \u201cspin,\u201d by deviating from the standard liberal line in his approach to the recent Court decisions. It is true that, in sharp contrast to McCain and in step with the liberal wing of the Court, Obama embraced the decision allowing Guantanamo detainees to challenge their imprisonment through habeas corpus. But on the other two cases, Obama broke with the Court\u2019s liberals and put little daylight between himself and McCain. <\/p>

\nLike McCain, Obama sharply criticized the decision categorically banning the death penalty for child rapists. And while Obama did not enthusiastically embrace the Second Amendment ruling, he fully endorsed the Court\u2019s unprecedented (and \u201cconservative\u201d) reading of the Second Amendment as including an individual right to bear arms (as opposed to merely a right to do so as part of a state militia).<\/p>

\nObama\u2019s Reaction to the Court\u2019s Decisions: Political Move, or Candid Commentary?<\/strong><\/p>

\nPolitical commentators have been quick to denigrate Obama\u2019s responses as a calculated political move, aimed at defusing potentially vexing campaign issues. This is understandable. Democratic presidential candidates routinely attempt to inoculate themselves against the charge of being soft on crime — and that goes double when the crimes in question are against helpless children. Moreover, no Democratic candidate wants to alienate the nation\u2019s passionate gun owners, who number in the millions and are concentrated in states that may well decide the election. <\/p>

\nI am not so na\u00efve as to believe that politics plays no role in Obama\u2019s thinking about these issues. But I also believe, just as strongly, that Obama\u2019s approach to these cases reflects much more than mere political calculation. <\/p>

\nDespite what some pundits have suggested, Obama did not suddenly discover his heterodox jurisprudential views as a presidential candidate; he has held them for years, and some even since law school. For example, Obama has long been on record as saying that the Constitution permits capital punishment as a general matter, and that some crimes are so heinous that society may be justified in taking the life of those who commit such crimes. His reservations about the death penalty, which surfaced early on in his Illinois legislative work, have focused on the enormous difficulties in carrying out a system of capital punishment is a fair and accurate way. Similarly, Obama had long ago stated his view that the Second Amendment protects an individual right to bear arms, subject to reasonable regulation \u2013 a position often associated with one of his mentors at Harvard Law School, Professor Laurence Tribe. <\/p>

\nIn light of this record, it seems reasonable to assume that Obama\u2019s reactions to the end-of-term decisions provide a useful guide to his judicial philosophy and his likely approach to judicial appointments. <\/p>

\nWhat Obama\u2019s Remarks Regarding This Term\u2019s Decisions Suggest About His More General View of the Court\u2019s Role <\/strong><\/p>

\nAs I see it, Obama\u2019s views about the Court\u2019s end-of-term decisions reflect a commitment to three extremely fundamental concepts: first, to the rule of law and the system of checks and balances that protects it; second, to judicial modesty and a concern about judges substituting their own moral judgments for those of elected representatives; and, third, to a willingness to take the Constitution\u2019s text, history and tradition seriously in constitutional interpretation, even when this methodology leads to uncomfortable results. <\/p>

\nThe basic idea behind the 5-4 decision allowing Guantanamo detainees access to habeas corpus<\/a><\/strong> is that the Executive Branch should not be able to lock up people indefinitely on its own say-so \u2013 and that even Congress cannot give the Executive this authority. The Court was also rejecting the idea that the Executive can somehow place detainees beyond the reach of the law by housing them at Guantanamo, where the United States maintains total control but not actual sovereignty. <\/p>

\nIn defending this decision, Obama placed himself squarely in the camp of those who recognize that the increase of governmental power that necessarily attends an aggressive fight against terrorism requires vigilant attention to the constitutional checks and balances that are designed to thwart the abuse of governmental power (including, in the Guantanamo cases, the constitutional prohibition on Congress\u2019s suspending the writ of habeas corpus). In other words, Obama is likely to appoint judges skeptical of claims of unreviewable authority, and sympathetic to readings of the Constitution that emphasize governmental accountability. <\/p>

\nThis view of the Constitution entails a significant role for the judiciary as a check on the other branches of government. However, as Obama\u2019s response to the decision striking down the death penalty for child rapists shows, he is no fan of judicial self-aggrandizement. <\/p>

\nAs indicated by his criticism of that decision, in Obama\u2019s view, it is one thing for the judiciary to play referee among the three co-equal branches of government, and quite another for unelected judges to second-guess the moral judgments of elected legislatures using highly elastic readings of the Constitution.<\/p>

\nIn the child rape death penalty case<\/a><\/strong>, the Court declared that putting persons to death for any crime other than murder offends our \u201cevolving standards of decency\u201d \u2013 and, thus, violates the Eighth Amendment\u2019s ban on cruel and unusual punishments. But this judicially-created yardstick of \u201cevolving standards of decency\u201d has always invited judges simply to substitute their own moral judgments about \u201cdecency\u201d for those of elected representatives, including, in the child rapists case, the elected representatives of the six states that (along with the federal government) authorize the death penalty for this crime. <\/p>

\nIn questioning this decision, Obama has indicated that he shares the concern often (but not exclusively) expressed by conservatives that unelected judges ought not use the expansive phrases of the Constitution to set themselves up as a super-legislature, second-guessing the policy judgments of elected officials. This instinctual preference towards democratic rule may ruffle the feathers of unreconstructed defenders of Justice William Brennan\u2019s style of liberal jurisprudence, but it should be welcomed by the rest of us.<\/p>

\nMuch the same goes for Obama\u2019s approach to the Second Amendment and the Court\u2019s decision<\/a><\/strong> to void the District of Columbia\u2019s handgun ban. It seems pretty clear that Obama himself doesn\u2019t have much affinity for guns \u2013 we see no orchestrated photo ops, for instance, with the candidate dressed up in camo. And he may well have some sympathy with DC legislators\u2019 trying to curb gun violence through a handgun ban.<\/p>\n

But one of the great problems with the Court in the modern era has been the willingness of the justices to abandon their usual interpretive methods when those methods point towards disfavored results. (So it is, for example, that Justice Antonin Scalia\u2019s much-trumpeted attachment to the jurisprudence of original intent basically disappears in affirmative action cases, where original intent does not, in fact, suggest the outright prohibition Scalia favors). At a minimum, Obama\u2019s approach to the Second Amendment suggests that he will look for judicial appointees who value internal consistency in their respective jurisprudences at least as much as they do the results to be reached in individual cases. <\/p>\n

As the presidential campaign unfolds, the issue of judicial philosophy, abstract though it is, is likely to gain increasing attention. When it does, in this area, as in others, the choice this time around will not be between old-time conservative and old-time liberal, but between conservative and something largely defiant of labels.<\/p><\/span>\n\n\n\n

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\n\n\n<\/a>\nEdward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books — most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.<\/i> \n

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