Sunday, May 25, 2008

McCain No "Maverick", What He'd Do, What Obama'd Do re Supreme Court

This week's New Yorker includes a pieces by Jeffrey Toobin on McCain's May 6th speech on the judiciary and the Supreme Court.

if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.

After unfolding the implications (dog whistles) of McCain's May 6th speech regarding his outlook on constitutional law , specifically regarding execution of juvenile offenders, right to privacy, Toobin concludes:

In just three years the Roberts Court has crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state. It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: “It is not often in the law that so few have so quickly changed so much.” And more change is likely to come. John Paul Stevens, the leader of the Court’s four embattled liberals, just celebrated his eighty-eighth birthday; Ruth Bader Ginsburg is seventy-five; David Souter is only sixty-eight but longs for his home in New Hampshire. For all the elisions in John McCain’s speech, one unmistakable truth emerged: that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.
Toobin was on Bill Moyers Friday night and explained why he wrote his piece-

BILL MOYERS: So what surprised you about McCain's speech enough for you to want to write about it this week?

JEFFREY TOOBIN: Well, what surprised me was the degree to which he embraced, in its entirety, the really strong conservative agenda that President Bush has reflected in his appointments to the Court, that this was not the maverick John McCain. This was the John McCain who needs to ingratiate himself with the base. And he did in a big way.


McCain has a problem. His problem is on those issues the public, by and large, is against them. The public doesn't want to see Roe versus Wade overturned, doesn't want to see abortion abandoned, doesn't want to see affirmative action ended, doesn't want to see the death penalty expanded. So what he did was he spoke in code. There were dog whistles in there, words that can be heard and understood by people who are on the inside of the conservative movement - but the way he dealt with the issue was to speak in code but to speak very clearly in code. And that's what I tried to do in my New Yorker story, which was to unravel the code to make it clear what he was saying.

But to me, here was the headline out of Moyers interview with Toobin: what kind of judges would Obama appoint? Here's Toobin's view (emphasis added):

BILL MOYERS: What was the dog whistle Obama was blowing on the campaign trail when he mentioned the late Chief Justice Earl Warren?

JEFFREY TOOBIN: Oh, that's very clear. It is saving Roe versus Wade. It is allowing the consideration of race in college admissions. It is strict limits on the death penalty. It is special regard for the separation of church and state. You know, Obama is a former Constitutional Law Professor. And I've had the opportunity to talk to him about the Constitution. He still follows the Court very, very closely. He mentioned Souter, Ginsburg, and Breyer as Justices he admired. So I don't think there's any doubt what kind of Justices he'll appoint to-

BILL MOYERS: Liberal Justices?

JEFFREY TOOBIN: Liberal Justices but also I think Justices with some real-world experience. You know, this is the first Court in history where all nine Justices are former Federal Appeals Court Judges. I think the Court's missing something. And I think Obama feels that way, too.

BILL MOYERS: Earl Warren had been Governor of California. He was a Republican appointed by Dwight Eisenhower. He became the poster boy, to use that cliché, for the right wing's efforts to impeach him.

JEFFREY TOOBIN: You remember the bumper sticker-

BILL MOYERS: I remember, "Impeach Earl Warren." And that's when this all began because they saw him as a very liberal and activist judge. And I was curious when I saw that speech by Obama as to why he wants to rile the forces against him even further by mentioning perhaps the most hated name in the judiciary as far as conservatives are concerned.

JEFFREY TOOBIN: Well, I think this is something Obama feels strongly about. He has devoted years of his life to studying the Supreme Court. He really knows the subject. And I think the fact that Warren both was a progressive Justice and came from outside the monastery of judges is something that a President Obama, if there is one might well look to in making appointments.

Full transcript here. You can watch online here. The discussion begins with Bush v. Gore, which Toobin wrote about in Too Close to Call, also a good book and which is the subject of tonight's HBO's Recount (and I blogged about here.)

This assessment is in synch with what Obama said yesterday, with respect to who he might pick as his Vice Presidential candidate (emphasis added):
My goal is to have the best possible government. And that means me winning. So, I'm very practical in my thinking. I'm a practical guy. One of my heroes is Abraham Lincoln. Awhile back, there was a wonderful book written by Doris Kearns Goodwin called 'Team of Rivals,' in which she talked about how Lincoln basically pulled all the people he'd been running against into his Cabinet. Because whatever personal feelings there were, the issue was, 'How can we get the country through this time of crisis?' I think that has to be the approach one takes to the vice president and the Cabinet.
Good summary on that front here, from Time's Stumper blog.

This week, Toobin won the J. Anthony Lukas Book Prize given by Columbia Journalism school for his book The Nine. (It should be noted that one of the judges is a colleague of his from The New Yorker). The book is really good. Theme of his book is that the Supreme Court is not apart from politics, and it is absolutely fascinating. (That was also the theme of my Vassar undergrad thesis– around one case, which may be why I loved it).

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