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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Who’s the “Judicial Activist?”

One of the more interesting bits of advice being offered to John McCain about what to do to regain some momentum is this from conservative activist Greg Mueller, as quoted by Politico’s Roger Simon today:

The Supreme Court issue can be extremely powerful for McCain. Obama is basically for using the court for social engineering. This is key for Reagan Democrats in key swing states. Catholics respond very well to the Supreme Court issue. McCain and Palin have got to get on that….
[McCain] has to talk about the Supreme Court. Obama will be the ultimate judicial activist advocate as president, using the courts for social engineering projects. Once the American people focus, McCain can win on this issue. It is an issue that attracts independent voters and Catholic Democrats.

Whether or not McCain takes Mueller’s advice, the issue of Supreme Court appointments could come up in a question in tonight’s debate.
So it’s appropriate to review this argument that Obama is a dangerous radical on constitutional issues who would direct the Court into a new and radical direction.
Here are a few pertinent facts about the recent and current composition of the Court, and how one should look at the idea that godless liberals have seized it or are threatening to seize it.
Seven of the current nine Justices were appointed by Republican presidents.
Going back a while, 12 of the last 14 Supreme Court appointments were made by Republican presidents (two by Bush 43, two by Bush 41, three by Reagan, one by Ford, four by Nixon, as opposed to two by Clinton and zero for poor Jimmy Carter).
When it comes to abortion, five of the seven Justices who concurred in the original Roe v. Wade decision striking down state abortion laws were appointed by Republican presidents. All five of the Justices who voted to reaffirm Roe in the crucial Casey decision of 1992 were appointed by Republican presidents.
In terms of future appointments, it is universally believed that the three Justices most likely to retire during the next four years are Stevens, Ginsburg, and Souter. They are three of the five current Court members who are willing to uphold Roe (including Justice Kennedy, who’s recently exhibited a willingness to support major restrictions on abortion rights), and three of the four Justices generally thought to constitute the Court’s “liberal wing,” though none of them are really “liberal activists” in the tradition of past figures like Douglas, Brennan or Warren.
So: the idea that Barack Obama would be in a position to engage in any “social engineering” via the Supreme Court is, well, preposterous. The real issue here, as every honest conservative will admit, is that a President McCain could finally consolidate a conservative activist revolution on the Court that’s been a work in progress since the 1970s, and that is focused obsessively on the overturning of Roe. And it’s extremely clear that conservatives will demand, and will receive, an appointment from a President McCain that would represent the fifth vote to overturn Roe, in addition to a variety of other big constitutional changes from today’s center-right Court.
The Harriet Miers skirmish that preceded Bush’s appointment of Justice Samuel Alito was the dress rehearsal for what would happen prior to a McCain Court appointment. Conservatives will fight tooth and nail against any Republican Court appointments for nominees who do not basically have a Federalist Society tattoo right there under their robes, and who are not guaranteed to vote for the overturning of Roe.
Yes, the certainty that a first-term President McCain would have to get Court appointments through a Democratic Senate is an important factor, though there’s already talk that he might emulate George H.W. Bush’s successful Clarence Thomas strategem of choosing a hard-core conservative who is female and/or who represents a minority group (most likely a Hispanic, since there’s never been a Hispanic Supreme Court member).
But make no mistake, it ain’t Barack Obama who portends any sort of big change in the role of the Court, or in the rights enjoyed by Americans. As the New York Times recently said in an editorial on the subject:

[I]f Mr. Obama is elected, he might merely keep the court on its current moderately conservative course. Under Mr. McCain, if a liberal justice or two or three steps down, we may see a very different America.

During the Harriet Miers saga, I observed that in demanding an absolute veto over Court appointments, social conservatives were essentially calling in a thirty-year mortgage on the Republican Party. Given recent events, that metaphor is more appropriate than ever.

One comment on “Who’s the “Judicial Activist?”

  1. michiganschool on

    Thanks Ed for highlighting the importance of this election to those who care about maintaining the constitutional right to a safe abortion without humiliating or draconian constraints.
    I have been extremely frustrated by flippant public comments made by DEMOCRATS maintaining that ‘Roe v. Wade’ ‘will never be overturned’—very reckless indeed, and completely unjustified assertions given recent 5-4 votes on important abortion cases.


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