In a lengthy and wothwhile post on Slate last week, two Obama backers lament their man’s rhetoric on the judiciary. I regard their complaints as good news; may their man go from rhetorical weakness to weakness, I say. But Doug Kendall and Dahlia Lithwick are not pleased. They assert that Obama has over the last few weeks “tugged” the First, Second, Fourth, and Eighth Amendments to the center — which means to the right of where they think those texts should be “tugged”. The Slate writers do not question Obama’s political judgment. They recognize that in any campaign “political expedien[ce]” exacts a toll. They also recognize that some of the “rightward drift” has long been part of Obama’s “unorthodox constitutional thinking.” They specifically cite here Obama’s stance on capital punishment.
Kendall and Lithwick are, in fact, not much interested in this or that case result. The rightward drift they lament is “in the way progressive candidates” — such as Barack Obama — “should talk about judging and the Supreme Court.” They worry that Obama’s stated judicial philosophy represents a startling and unfortunate concession to McCain and to judicial conservatives generally. In this they are half right: Obama has indeed accepted the conservative way of talking about judges and judging. But this is neither politically nor philosophically unfortunate.
Basically, Obama has said that almost every single case that the Supreme Court decides can be decided by conventional legal reasoning about uncontroversial legal source materials. So far, Obama sounds just like John Roberts at his confirmation hearings: legal craft sans ideology can and should take the judge all the way home. Of course, McCain holds up Roberts as his ideal judge; Obama famously voted against confirming the present Chief Justice. The difference-make for Obama is his claim that in a very small number of cases, maybe in only one out of a hundred (no more that once each Supreme Court term), a Justice must rely upon “empathy” or personal values extrinsic to the legal materials to reach the result that Obama thinks is right.
The authors correctly see this (admittedly, rare) way of deciding cases for what it is: elitism. They rightly say that voters know it: “Voters see ["empathy"] as code for ‘latte-sipping, out-of-touch, smarty-pants elitism’”. Just so: the only difference between what Obama wants in a Justice and what McCain wants in a Justice is that Obama wants a judge who thinks the way he does about intolerant blue-collar underachievers who cling to guns and God — but who acts on that basis only only once a year. This stance is, I dare say, intrinsically very odd. It is also guaranteed to be unpopular. No surprise, then, Kendall and Lithwick report that 69 percent of Americans agree with McCain on judges, while just 41 percent agree with Obama. (Which means, I guess, that 10 percent of us agree with both. Go figure.)
The authors urge Obama to throw overboard all the conservative baggage about judging. There is no need or cause, they say, to describe the occasional decisional difference maker as “empathy”, much less as the judge’s personal values. No need, either, to concede that narrow craft resolves almost every case. They deny any such division or opposition between law and values. They assert that all the values a progressive judge needs — “civil liberties, civil rights, …equal access to courts and justice” — are already right there, in the law. They are “enshrined in the Constitution.” That is why judges can and should enforce them. Not because these are (as they say) “tender, liberal values” which Obama wants “judges to share” with him, but because the Framers put them in the fundamental law itself.
Kendall and Lithwick astutely describe this approach as one which “marr[ies] method to results, rather than divorcing these concepts”. They think it is the key to mobilizing progressives behind Obama.
Kendall and Lithwick may well be right: “progressives” will press something like this bracing rhetorical regimen upon Obama until he accepts it. But there is great risk to him in doing so. Many Americans — including centrist voters unsure of their course come November — will rightly wonder about the integrity of a Harvard Law Review President and constitutional law professor who flips and flops on judges. Obama may have to wager, in other words, the pearl of greatest price: his so-assiduously cultivated image of himself as a man of unsullied principle.