The Supreme Court as a Unifying Issue?

by: Daniel De Groot

Thu May 22, 2008 at 12:10

Federal court rules against military's gay policy
Some believe ruling could mean the end of 'don't ask, don't tell'

Associated Press
updated 1:21 a.m. ET, Thurs., May. 22, 2008

SEATTLE - The U.S. military cannot automatically discharge people because they are gay, a federal appeals court ruled Wednesday in the case of a decorated flight nurse who sued the Air Force over her dismissal.

The three judges from the 9th U.S. Circuit Court of Appeals did not strike down the military's "don't ask, don't tell" policy. But they reinstated Maj. Margaret Witt's lawsuit, saying the Air Force must prove that her dismissal furthered the military's goals of troop readiness and unit cohesion.

Cleverly done if I may say, by leaving DADT standing in principle but placing an onerous burden on the Military to demonstrate why each individual homosexual had to be discharged for morale reasons.  

Naturally I want DADT gone as an indefensible relic of bigotry against homosexuals (and women should be allowed to serve in combat roles), but there's merit in this approach if it avoids being overturned by the Supreme Court.  

Which brings me to the Supreme Court, and its salience for Democrats, and the potential for Obama to use it as a unifying issue.  

Besides, "eventually" coming around and grudgingly voting for Obama is not good enough.  If Obama can speed up the process of uniting the Democratic party behind him, he definitely should.  It simply doesn't matter whether or not Clinton supporters have any legitimate grievance, their beliefs and feelings matter whatever the validity of the underlying factual issues.

The Judiciary in the Campaign So Far

I've written in the past about how the Judiciary is the one branch of the US government that I believe is actually not by-design stacked against progress and this ruling is a reminder (anecdotal I suppose) of that.  We have a Supreme Court that has 4 wingnuts, 5 conservatives and 7 Republican appointees and Roe is still (barely) standing.  If it takes absolutely hegemony by conservatives to get the court to overturn the progress of the 60s and 70s, I'd say institutionally the Court works pretty well as an engine of progress.

So I'm disappointed that neither Clinton nor Obama feature Judicial nominees on their issues pages, given the obvious importance of the issue for the next president.  Maybe JP Stevens will be one of those guys who lives heathily to 120, but the odds are not good.  McCain, on the other hand, has this off his front page and then (since that link looks like it rotates daily) a section devoted to the topic on his issues page.  Here's McCain:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.

So inherent in this is an attack on the rightful powers of the Judicial branch.  If it is a co-equal branch of government why should it show "regard" for the President, Congress or the States (and the States are not a co-equal branch).  This is a prescription for Judicial submissiveness.  And that Judges are not elected is not the crux of McCain's complaint here, or he would be arguing for elections for Fed-Chair and the Attorney-General and hell, why not popularly elect the Speaker of the House?  Lots of government positions are not elected.

He goes on to reference obliquely some cases that offended him:

as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency."

That of course, was the case which ruled against executing children and the reason Kennedy drew on the things that outrage McCain here like International law is because the definition of "cruel and unusual punishment" isn't exactly clearly spelt out in the text of the Constitution.  Far from "judicial legislation" Kennedy was fulfilling the right and proper function of the court.  Executing minors is a fucking abomination and that's why I'm pissed that the Democratic contenders don't rebut this stuff.  I mention all this to show the level of disingenuity conservatives have to sink to in order to make this case.

Oh and lest there was any doubt about McCain:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect.

In this version of Top Gun, Maverick doesn't ever abandon his wing man Bush to get the Jester.

Here's what I could find from Obama's site (I had to do a site specific google search to find it):

Speaking at the Planned Parenthood conference in DC this afternoon, Barack Obama leveled harsh words at conservative Supreme Court justices, and he offered his own intention to appoint justices with "empathy."

Now, that's from July 2007.  If he's said anything more recently on the subject, it's evidently not on his web site (there was also this page from 2005 which is the text of a Senate speech he made against a conservative nominee to the DC Circuit court, particularly noteworthy (worrisome in my view) is that he uses the "judicial activism" frame against her, reinforcing a conservative frame).

So yet again we have a battlefield on the Gramascian culture war which only one side is shooting.  

The Supreme Court as a Unifying Issue

Admittedly the polling picture is somewhat mixed.  That however, speaks to how weak the conservative case against the Judiciary really is.  They've been harping about this for decades and havn't managed to convince a majority or even a plurality on any of their nonsense.  This is all the more reason to engage this fight, it is clearly a fight liberals can win.

11% more people (Gallup, Sept 2007) think the court is already too conservative than too liberal (plurality says "about right").  52% say the Supreme court matters in their next vote for President (Quinnipiac, Aug 2007).  And consistent majorities or pluralities think Judges should rule according to "current realities" not "original intent" (ibid) - who knew that people were smart enough not to want to be governed by 18th century norms?!  Astonishing.

CNN asked people "Do you think elected officials should have more control over federal judges and the decisions they make in court cases, or don't you think so?" and 67% said no to 30 who said yes.

On every poll I see, there's plenty of room for a liberal argument to win as the public is already on side, often in the majority or even supermajorities.  This isn't divisive at all, the public wants the court to be able to overturn laws that don't meet constitutional standards, wants Roe upheld and wants Judges with mainstream contemporary ethics.  The public is amenable to the argument that the court is too conservative too.

These are the kinds of issues that will unite agrieved Clinton supporters behind Obama in a meaningful way.  Further, it's a generally unifying issue politically beyond just Democrats.  Conservatives have tried their darndest, but the nation still understands and respects the proper function of Judges.

Also, see  today's Greenwald for a concise essay on the proper role and function of Judges.  It's an easy case to make and we should be making it.