News Flash: Liberal Judging Not Popular

TIME Magazine’s Massimo Calabresi thinks that Barack Obama is being savvy in “moving to the center” by announcing that he sides with the conservative bloc of the Supreme Court (and at least to some extent against his own prior positions) in supporting the individual Second Amendment right to own guns and the death penalty for child rapists. Plainly, Obama is hoping for gullible reactions like that of Jay Newton-Small, who tells us:

Of course, there’s little Obama would be able to do to about either ruling, even as president. So, his comments come purely as opinions that give voters an idea of where he stands on the political spectrum.

What he’s hoping to avoid is the reaction of Andrew Hyman, who notes that Obama voted against Justices Roberts and Alito (who he now supposedly agrees with) and cited Justices Breyer, Ginsburg and Souter as model Justices even though he now disavows their views on these cases. As Hyman observes, don’t watch what Obama says but what his preferred judges do. Because Obama sure as heck is not going to put people like John Roberts on the Supreme Court, and as Calabresi admits, Obama won’t be eager to talk about that:

Obama’s run to the center surely won’t stop conservatives from using the specter of a Democratic-appointed Supreme Court to try to rally support. “Its pretty clear that if he’s elected and Justice Scalia or Kennedy retires that he’s going to appoint someone who’s very likely to reverse [the gun control decision],” says Eugene Volokh, a professor at the UCLA School of Law. Given how Obama has been responding to the recent Supreme Court decisions, however, you’re not likely to hear him talking about appointing liberal justices much between now and November.

In other words, you can tell that the judges issue helps McCain and hurts Obama by watching the candidates’ behavior. Why is the judges issue bad for Obama, and doubly bad when the decisions freshest in the public mind are about gun rights, a softer line on child rapists and rights for terrorists? It’s not hard to see why. Nearly a third (30%) of Republicans cite judges as the #1 issue, compared to 7% of Democrats. Even before the last day’s decisions, public approval of the Supreme Court has dropped to 26%, down from 41% a month ago, a shift almost certainly driven by the habeas decision. Meanwhile, polls show voters identifying Obama as liberal and McCain as conservative in greater numbers earlier in the process than the same numbers for Kerry and Bush in 2004. And few issues more perfectly capture why “liberal” became a dirty word in American politics than the collection of hot-button issues decided by the courts, especially where crime is concerned.
For Republicans, the challenge will be to remind voters that a better, more predictable and less aggressively activist judiciary, leaving more space for democratic self-government and limiting its powers to protection of the express rights granted by the text of the Constitution, is the result of Republican governance, and that Obama’s platitudes are meaningless and fleeting, whereas his judicial appointments would be hard-left and permanent. For Obama, the goal is to conceal as much as possible his real agenda in shaping the courts. Because putting people on the bench who are not committed to simply enforcing what the people have already agreed to is not a winning proposition.