Bench Memos

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Will Obama Choose a More Restrained Justice to Advance His Policies? Don’t Bet on It


Stuart Taylor has an interesting column in tomorrow’s National Journal, in which he argues that President Obama has incentives to appoint a somewhat restrained Justice to replace Souter.  To get a flavor, it is worth quoting at some length:

Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.

Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.

The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. . . .[N]ominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics.

While I agree with what seems to be the major thrust of Taylor’s piece, namely that on numerous issues of executive power—particularly regarding the ability to effectively conduct ongoing military operations—appointing an activist would be counterproductive for the President, I am less optimistic than Taylor that this will moderate the President’s apparent proclivity toward judges with a heart for activism. 

In large measure, I am skeptical because by appointing an activist judge, Obama can seek to get the best of both worlds: he can effectuate the liberal policies, but he does not have to take political responsibility for them.  Indeed, if one looks at the policies that Taylor highlights, Obama has already tried to have it both ways.  The President has said that he is against gay marriage, but he also opposed California’s Proposition 8, which was passed to undo the activist gay marriage opinion by the California Supreme Court.  On gun rights, his campaign first said that the DC gun ban was constitutional, but backtracked in the heat of the presidential race when the Supreme Court struck down the ban (despite consistently supporting gun restrictions, and his appointment of the 2nd Amendment-challenged Eric Holder to Attorney General).  These are but two examples where Obama’s actions support the liberal policies, while his rhetoric supports the more popular and more conservative policies.

What is the solution for Obama, when his desired positions are not politically popular?  What better than to let the courts remove the issue from the democratic process by claiming the issue has become “constitutionalized.”  It is the classic liberal maneuver to accomplish the politically unpopular without having to accept political responsibility.  And how better to do this than to promote the appointment of activist judges by issuing contradictory statements about seeking judges who respect our traditions and the rule of law, while somehow at the same time making decisions based upon their personal affinity for the parties in front of them.  Ultimately, something has to give, and for Obama, it seems clear that what will give in this dichotomy is the rule of law. 

And so, will Obama appoint a restrained Justice so that the policies that he has supported in words rather than deeds will be maintained?  I wouldn’t bet on it.


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