Judicial Appointees–A Far More Important Issue Than You Hear in the Sound Bites

One frustration in watching the presidential campaign play out in sound bites and ads is that neither candidate really gives me much reason to vote for them. Fortunately I know far more about the differences between the candidates than one would see from either the media coverage or the more visible portions of their campaigns. It is only when the real detail of what each candidate stands for is reviewed that the reasons for supporting Obama over McCain become clear. While the real issues which matter are often ignored, sometimes they manage to get discussed, such as in an op-ed by Obama adviser Cass Sunstein in The Boston Globe.

The op-ed is primarily about Roe v. Wade but makes many important points about the overall differences in judicial appointees to expect from each candidate. He notes that overturning Roe v. Wade would hardly be a conservative thing to do, even for those who believe the court went too far in its initial decision:

But it is one thing to object to Roe as written in 1973. It is another to suggest that it should be overruled in 2008. American constitutional law is stable only because of the principle of stare decisis, which means that in general, the Court should respect its own precedents.

Roe v. Wade has been established law for 35 years; the right to choose is now a part of our culture. A decision to overrule it would not only disrupt and polarize the nation; it would also threaten countless doctors, and pregnant women and girls, with jail sentences and criminal fines. As Ginsburg has also urged, Roe v. Wade is now best seen, not only as a case about privacy, but also as involving sex equality.

From there Sunstein moves to the more general argument:

For the future of constitutional rights, there is a broader point, which involves the fragility of many constitutional principles. Of course the Supreme Court tends to move slowly, but some conservatives who speak of “strict construction,” and of “legislating from the bench,” have something quite radical in mind.

For them, these are code words. They seek to appoint judges who will overturn not merely Roe, but dozens of other past decisions. For example, they want judges to impose flat bans on affirmative action, to invalidate environmental regulations, to increase presidential power, and to reduce the separation of church and state. Some Republican appointees to the Supreme Court have already called for significant changes in constitutional law in these domains.

Does all this sound like “strict construction”? Actually there is an uncomfortably close overlap between the constitutional views of some recent Republican appointees to the federal judiciary and the political views of those on the extreme right-wing of the Republican Party. There is a good chance that a newly constituted Supreme Court would entrench some of those views into constitutional law.

When McCain and other Republicans speak of supporting justices who will strictly interpret the Constitution what they really mean is that they will appoint justices who agree with their views. These views, which give more power to the government, restrict the rights of individuals, and deny the importance of separation of church and state, promote a  philosophy which is the opposite of the views of the framers of the Constitution.

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