Bench Memos

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.

Robert Alt is the president and chief executive officer of The Buckeye Institute.

Most Popular

Law & the Courts

Replacing Ginsburg

While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing. Justice Ginsburg almost certainly had more fans than any ... Read More
Law & the Courts

Replacing Ginsburg

While we did not agree with many of Justice Ruth Bader Ginsburg’s views about the Constitution or the judicial function, we never doubted her industry, dedication, gumption, civility, or patriotism. We send our condolences to all who mourn her passing. Justice Ginsburg almost certainly had more fans than any ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More

Snobs or Mobs?

A   lot of us were feeling pretty good about the future of the media in late September of 2004. Dan Rather and the CBS news division had just tried to derail George W. Bush’s reelection campaign with some genuine fake news — based on fake documents — and, in spite of the manful attempts of ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More
Law & the Courts

Barr Is Right About the Prosecution Power

Attorney General Bill Barr gave a speech at Hillsdale College on Wednesday that attracted a lot of attention. Much of that attention was for his ill-considered remark (in a question-and-answer session following the speech) that "Other than slavery, which was a different kind of restraint, [the pandemic lockdowns ... Read More
World

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More
World

Jared Kushner Was Right

Over the past several years, a new certainty was added to death and taxes: Jared Kushner would fail in his role as the administration’s Middle East point man. It caused considerable merriment among President Donald Trump’s critics (and even some of his well-wishers) when he put his son-in-law in charge of ... Read More

The Mystery of Robert E. Lee

No one who ever met Robert Edward Lee -- whatever the circumstances of the meeting -- failed to be impressed by the man. From his earliest days as a cadet at West Point, through 25 years as an officer in the U.S. Army’s Corps of Engineers and six more as a senior cavalry officer, and then as the supreme ... Read More

The Mystery of Robert E. Lee

No one who ever met Robert Edward Lee -- whatever the circumstances of the meeting -- failed to be impressed by the man. From his earliest days as a cadet at West Point, through 25 years as an officer in the U.S. Army’s Corps of Engineers and six more as a senior cavalry officer, and then as the supreme ... Read More