"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
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
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
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.