Obama Court is Conservative Nightmare

“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 – who called the Bush Administration’s handling of enemy combatants “a global scandal” and accused the High Court’s conservative bloc of "colorblind Constitution absolutism” – 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
2) 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 majority.”

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 his wording).

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. It’s no wonder that the issue of judicial appointments looms large in this year’s race for the White House.