This is part three of a series on the start of the 2008 presidential election’s general campaign. Links to the rest of the series can be found at the bottom of the article.
Whoever wins in November, there are likely to be Supreme Court vacancies during the next president’s term. John Paul Stevens is eighty-eight. Ruth Bader Ginsburg, seventy-five, has had health problems in recent years. And David Souter is said to be eager to return to New Hampshire. So how should the journalists covering the campaign approach the issue of Supreme Court appointments?
In recent presidential elections, anyone paying a basic amount of attention to the race has gone to the polls understanding one clear and compelling difference between the candidates: that the Democrat would pick judges who would vote to uphold Roe v. Wade, ensuring that abortion remains legal, and that the Republican would, in all likelihood, pick judges who would vote to overturn it, opening the door to state-level abortion bans. As a result, we’ve all been admirably well informed about the impact of our vote on this key issue.
We’ve achieved this level of clarity on abortion because well-organized interest groups on both sides demand it of the candidates. But on a host of other issues that the Supreme Court is likely to consider over the next few years—presidential power in the war on terror, affirmative action, the death penalty, gay rights, and the balance between corporate and individual rights, to name a few—interest groups are less of a factor, at least in terms of the public debate, and as a result Americans may go to the polls with no clear sense of how the likely decisions made by the candidates’ judicial appointees can be expected to affect their lives. It’s the press’s job to ensure that we reach a level of clarity on these other issues equal to the one we currently enjoy on abortion.
The good news is, we already know enough about the candidates’ judicial philosophies that we can make very educated inferences about where their appointees would likely come down on many of these issues. In a recent speech, John McCain said he’d favor candidates for the federal bench “who understand that they were not sent there to write our laws but to enforce them,” and singled out the conservatives John Roberts and Samuel Alito as models.
By contrast, Barack Obama—who is himself a former lecturer on constitutional law—has praised three members of the court’s liberal wing, Stephen Breyer, Ruth Bader Ginsburg, and David Souter. And last year he declared that “we need somebody who’s got the heart, 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.” It would be hard to come up with a view that is more diametrically opposed to McCain’s.
Given these statements of intent from the candidates, the media’s main task isn’t primarily to uncover any new information. Rather, it’s to do the relatively straightforward work of decoding these statements (which were crafted, of course, for the activist groups on both sides) and clearly explaining to voters what they indicate about the likely appointees’ decisions on real-world issues that affect voters’ lives.
Using only those basic statements of principle from the candidates, it’s not hard to come up with a picture of what the press should make sure voters understand on a few crucial issues that the court is likely to rule on.
For instance, on the issue of the appropriate balance between corporate and individual rights: the press should make clear that Obama’s appointees, in keeping with his desire for “empathy,” can be expected to take a broader interpretation of laws designed to protect individuals; while McCain’s, if they are indeed in the Roberts-Alito mold, will interpret these laws more narrowly, and more often come down on the side of corporations.
On executive power: the press should make clear that Obama’s appointees would be more likely to oppose the continued expansion of presidential power—particularly on issues like torture, treatment of detainees, and domestic wiretapping—that began under President Bush; while McCain’s appointees would be more likely to support it, giving the president the authority to prosecute the war on terror largely as he sees fit.
On voting rights: the press should make clear that Obama’s appointees would be skeptical of state-level “voter I.D.” laws of the kind that Georgia and Indiana have passed in recent years, that critics say make it overly burdensome for many poor and minority citizens to vote; while McCain’s would be more likely to see these laws as reasonable efforts to combat voter fraud. Indeed, the Supreme Court recently upheld Indiana’s law, with Roberts and Alito voting with the majority.
On affirmative action: the press needs to make clear that Obama’s appointees would be more likely to support the use of race-based preferences in admissions policy as an acceptable means of achieving equality, while McCain’s would be more likely to oppose it as unconstitutional.
Of course, that’s only a beginning, and in addition to these very specific mandates for the press, there are countless other stories to be done to provide the necessary social and policymaking context for these issues. There’s also a host of other topics that are likely to come before the court, and even on those listed above, there’s room for plenty more detail. But the point is that the press should aim to provide for the public this type of clear statement about what to expect from the candidates’ likely appointees, across a range of issues—not just abortion. Sounds straightforward enough, but too often such coverage goes awry in a wrongheaded pursuit of “balance.”
One reason that the press hasn’t always given us such clarity on the judicial ramifications of presidential campaigns past, I’d argue, is that there’s a general sense that issues of jurisprudence aren’t fully “political” in the way that issues of, say, healthcare or tax policy are. As a result, it’s seen as not quite fair for the public debate to get too specific about how a candidate’s appointees might be expected to rule on controversial issues. We see this most clearly during Senate confirmation hearings, in which nominees are generally given a pass by the press about their exact views on controversial political topics and legal cases. But it also comes into play during campaigns, where the press generally accepts the candidates’ dog-whistle statements to its activist supporters about “empathy” or “not legislating from the bench,” without requiring them to be more specific, or sketching out for ordinary voters what these statements really mean in terms of their appointee’s likely decisions and how those decisions will affect the lives of ordinary men and women.
This approach is out of sync with the reality of modern politics. George W. Bush came to office with the goal of using the legal system to achieve certain specific outcomes favored by his administration or its supporters—expanding presidential power, and strengthening the legal standing of corporations, among others. He was largely successful in that effort, and there’s no reason to think that this year’s candidates won’t take the same approach. The legal system is now another arena in which to achieve political and policy goals—if indeed it was ever anything else.
Given this reality, the press should accept that judicial appointments are just as political as any other issue in the campaign, and should pull no punches in spelling out the real-world consequences of the likely rulings to be made by the candidates’ appointees.
Turning Point:
Part One: Scandal! Oh, Nevermind
Part Two:Let’s get serious
Zachary Roth is a contributing editor to The Washington Monthly. He also has written for The Los Angeles Times, The New Republic, Slate, Salon, The Daily Beast, and Talking Points Memo, among other outlets.