Night of the Living Constitution

...Obama couldn’t create a liberal majority unless at least one conservative, or man-in-the-middle Kennedy, were to step down, and that looks doubtful, at least in the next four years...

...The non-lawyer McCain refl ects this philosophy in typically direct statements, such as this from a speech on the courts last spring at Wake Forest University: “A court is hardly competent to check the abuses of other branches of government when it cannot even control itself...

...But here is what the birth certifi cates say: John Paul Stevens, 88 Ruth Bader Ginsburg, 75 Antonin Scalia, 72 Anthony Kennedy, 72 Stephen Breyer, 70 David Souter, 69 Clarence Thomas, 60 Samuel Alito, 58 John Roberts (the chief justice), 53...

...It appears for Obama that the courts must be involved in improving things for all of those “who need protection,” and it could be a large group considering that Obama’s informal, campaigntrail list hardly seems exhaustive...

...Footnote Four is the most famous footnote in constitutional law...

...The appellate courts are especially important today because, with the Supreme Court deciding many fewer cases than it used to, they effectively function as the courts of fi nal appeal in their jurisdictions...

...An Obama judiciary would be a plainly liberal one...

...Which raises the question of Obama’s judicial philosophy...

...That is the basis of their legitimacy...

...What’s striking about comments like these is that Obama seems to be espousing a sort of “Footnote Four” judicial philosophy...

...Obama, a Harvard-trained lawyer who for a decade taught constitutional law at the University of Chicago Law School, has said “my judges” should have “the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or AfricanAmerican or gay or disabled or old...

...With comfortable majorities, Senate Democrats will have the power to prevent the appointment of any nominee...

...The same is true if there is a second vacancy...

...And Justice Stevens, age 92, would hold that record...

...He is the nominee of a party that for decades has advocated interpreting the law on its own terms and not infusing it with ideas or values not found within the Constitution—a party that opposes government by judiciary and supports judicial restraint...

...Obama has proved to be one of his party’s most determined opponents of judicially conservative nominees...

...And with regard to race-based preferences, judges who share his philosophy could push for their permanent institution in higher education, employment, and contracting as a way of making the “system” work better for certain minorities...

...This election plainly poses the question, if voters realize it or not, of whether we want judges like Roberts or judges eager to extend their authority beyond what is legitimate and erase the venerable distinction between law and politics...

...The senator must have cringed when he heard John Roberts, during his confi rmation hearing to be chief justice, answer a question about what the biggest threats to the rule of law might be by saying there was really only one threat—that of judges who take their “authority and extend it into areas where they’re going beyond the interpretation of the Constitution, where they’re making the law...

...Just as the appeals courts could go either way, so could the Supreme Court: a President McCain could have the opportunity to create a conservative majority or a President Obama could have the chance to create a liberal majority...

...Now, John McCain promises to name judicial conservatives to the Court, while Barack Obama vows to pick judicial liberals...

...In sharp contrast to McCain, Obama is the nominee of a party that has embraced the activism of the Warren Court and its expansion under the Burger Court (think Roe v. Wade) and which has hardened in its hostility to judicial conservatism during the Bush presidency...

...By the same measure, if McCain is elected, every one of the twelve circuits, including the notoriously liberal Ninth Circuit, could have a Republican-appointed majority...

...Stevens has served the longest of the nine, and by next July he will have completed 34 years, than which only fi ve justices ever recorded more...

...The same justices could be sitting in their same chairs...

...Code,” by which judges rewrite federal statutes they regard as somehow defi cient, which for Obama could mean statutes having an adverse impact on people “who need protection...

...So you can see what could happen if McCain is elected president...

...It is remembered today solely because of its renowned footnote...

...In this liberal nightmare, the relatively youthful majority would be busy whittling away at Roe v. Wade, eliminating race-based preferences in the public sector, strengthening the government’s hand in fi ghting terrorism, and facilitating a larger role for religion in public life—among many other bad, bad things...

...Judges have to recognize that their role is a limited one...

...Though Obama has supported the death penalty in certain, narrowly defi ned circumstances, his philosophy would also seem to entail its judicial abolition...

...The footnote called them “discrete and insular minorities”— those Americans, says Powe, who “even in a well-functioning political process may not be able to form coalitions and thus may be subject to discriminatory legislation...

...He voted not only against Roberts and Alito but also against six circuit-court nominees and joined in the Democrats’ fi libustering of such nominees— which fi libustering was without precedent in Senate history...

...As for Obama, if he is elected president and Stevens or Ginsburg (or both) step down during his term of offi ce, then he gets to replace a liberal with a liberal—maintenance work, you could call it, though the liberal cohort would become younger...

...He voted for the Roberts and Alito nominations, both of which Obama opposed, and he holds up both as models for the kind of judges he would appoint...

...Neither Kennedy nor Scalia shows signs of leaving the Court, and the three remaining conservatives are young, as young is measured on the Court—two of them have sat only briefl y. Still, if a conservative were to retire, President Obama would fi nd himself in a winning situation as regards confi rmation of his nominee...

...A living Constitution has its analogue in what might be called a “living U.S...

...The fi ckle Kennedy tends to provide the fi fth vote in close cases, particularly those involving abortion, race, and religion...

...puts it in his history of the Warren Court, to protect “those who need protection...

...Obama’s model justice is Earl Warren, who saw the role of the Court as that of doing justice, regardless of what the law at issue in a case might say...

...Thus his judges would carry out the judiciary’s “historic role” of protecting those who “may be vulnerable in the political process,” who have seen “the system not work for them,” who don’t “have access to political power,” and who “can’t protect themselves from being dealt with sometimes unfairly...

...His judges should help them by importing to their deliberations their own “perspectives,” “ethics,” and “moral bearings...

...On the other hand, it’s possible that the composition of the Court when the next election rolls around will be the same as it is today...

...There can be little doubt that McCain accepts and will act in furtherance of his party’s philosophy...

...Indeed, it’s hard to imagine a Democratic Senate rejecting any Obama nominee for any vacancy, at least not on grounds of judicial philosophy...

...It’s found in United States v. Carolene Products, the 1938 case in which the New Deal Court sustained a law prohibiting the shipment of so-called “fi lled milk” across state lines...

...He is threatening the record in this obscure competition, which was set by the justice whose seat he took in 1975, William O. Douglas, who served more than 36 years...

...Obama, who is a stout defender of the right to abortion announced in Roe, would seem to want judges sympathetic to arguments that the Constitution protects a fundamental right to education or health care or housing—perhaps even a right to credit...

...Indeed, liberals who worry that a conservative majority could be created by the addition of a single McCain appointee also know that, regardless of who is elected president, a Democratic Senate will almost surely persist through the fi rst two years of the next presidential term—and probably all four...

...At the usual turnover rate, if Obama is elected, by the end of his four-year term eight of the twelve regular circuits could have majorities appointed by Democratic presidents...

...Because of his age and length of service, Stevens is widely considered the most likely to step down, followed by Ginsburg...

...For if there is a vacancy during his term, the departing justice is likely to be a judicial liberal...

...This question will be there even if no Supreme Court vacancies occur during the next four years...

...Marking a turning point in constitutional law, Footnote Four confi rmed the court’s new-found deference to economic regulation while announcing the judicial intention, as Lucas A. Powe Jr...

...Doubtless the justices tire of seeing their ages mentioned in stories triggered by the presidential race that contemplate who is most likely to retire and leave a vacancy to be fi lled...

...They would be four years older, and they would have served four more years...

...He has characterized such people as being in “the minority” and “on the outside” and not having “a lot of clout...

...We know what McCain’s is...

...Terry Eastland explains the judicial consequences of an Obama presidency Have you noticed how the justices of the Supreme Court are living longer and longer, compiling more and more years of service— far more than they used to...

...Terry Eastland is the publisher of THE WEEKLY STANDARD...

...But, for McCain, actually replacing liberals with conservatives would be far more easily said than done...

...One can imagine a President McCain replacing liberals with conservatives and thus fi nally meeting that ancient Republican goal (dating from the 1968 presidential campaign) of an unambiguously conservative majority on the Court...

...Both happen to be judicial liberals on a Court that has four liberals (Breyer and Souter being the other two) and four judicial conservatives (Scalia, Thomas, Alito, and Roberts...

...For Obama, it would seem that what he calls minorities or outsiders would encompass not only those “vulnerable” in the political process and thus “subject to discriminatory legislation” in a Footnote Four sense but also those who encounter a “system” that doesn’t work for them...

...For the next president will certainly name judges to the federal appeals courts...

...Not surprisingly, Obama has endorsed the idea of a “living Constitution,” one judges adapt to meet the needs of a changing society...