Strengthening Constitutional Self-Government

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Quinnipiac Poll and the Fight for the Court

Of course, it is interesting to note that President Obama's approval rating continued its decline (now only 44%) in the latest Quinnipiac poll.  But if I were inclined to be cheered by this number and I were also thinking about how to drive it even lower for November, I'd also find in this poll a reason for pause:

Obama gets another selection for the Supreme Court this year, and voters trust him (46%) more than they do Senate Republicans (43%) to make the right choice. More (47%) believe that only qualifications should be considered by senators when voting on a nominee, while 43% believe political views should be a factor. Fifty-two percent approve of his first selection, Justice Sonia Sotomayor.

Considering the momentum of the Tea Parties and the massive unpopularity of Congress (they only get 20% approval) there seems to be a disconnect between the mood of the electorate on these matters and their inclination to trust Obama more than Senate Republicans to make the right choice when it comes to the Court.  

What might explain it? 

And, further, what does it suggest about the coming debates this summer over the Constitution?  A Supreme Court nomination ought to be a prime opportunity for conservatives in Congress to showcase their understanding of the Constitution and to lay the groundwork for a principled defense of their policy ideas for this November.  

But consider this suggestion from Obama today that when it comes to selecting a nominee he will not seek to impose a "litmus test" on abortion rights although, clearly, his language about "privacy rights" and women's rights suggests that he not only means to do precisely that, but that he intends to seek to lay down the terms of debate about his nominee in precisely these terms.  Conservatives should not be fooled.  This is a preemptive move on the part of Obama and the Democrats to turn the discussion surrounding his nominee away from the one thing that would be most helpful to Republicans--a substantive discussion of the meaning and purpose of the Constitution and what that may mean for understanding the limits on federal powers in the Constitution--and instead, to pretend that the central focus of any debate about the Constitution and the Courts interpreting it is the question of "privacy."

The "leave me alone" sentiment of the Tea Party movement, combined with the inability to effectively make a persuasive political case for conservative social policies (and their ties to the Constitution) make this an interesting--and not completely unpromising--choice for a last ditch effort on the part of the Obama people.   Interestingly, "privacy" seems only to interest Progressives like Obama when it comes to the consequences surrounding things people do in their bedrooms.  They aren't particularly keen about "leaving people alone" when it comes to things like . . . well, eating or voicing an opinion (especially if that opinion makes them look bad), or even in keeping the things that people do in their bedrooms private. 

But to take up this discussion borders on falling into a trap.  Obama would like nothing better in this political climate than to focus on the still highly volatile question of abortion and all other divisive social questions surrounding the meaning of "privacy" and a supposed right to it in the Constitution.  Although it is not saying much, it is the strongest hand he's got at the moment.  

This could work if conservatives lose focus. 

When Obama makes public his pick for the Court next month, I do not suggest that conservatives ignore what is sure to be a very bad record and indications about the inclinations of the nominee with respect to Roe v. Wade.  But I do suggest that there is no amount of wishing or pushing that is going to make the nominee any less bad in this respect.  It would be far smarter politics for Conservatives to take this tip of the hand Obama's giving us and pull out some stronger cards of their own.  Refuse to engage in the fight they want to have and show your Constitutional chops on questions other than this one.  It will go a long way toward reversing the only numbers Obama's got going in his favor right now. 
Categories > Courts

Discussions - 7 Comments

This is brilliant--write up in an op-ed for wider circulation. The Republicans don't know how to use a good weapon, because they can't argue on the basis of constitutional principle. They use vacuous terms such as "original intent," "strict constructionist," and "judicial restraint." Each can of course be defended, with the proper amount of prudence, but each by itself does not suffice as a slogan.

Obama has already shown himself to be the schoolyard bully he is by his treatment of the Court at the SOTU. Republicans should remind the public of that.

One of the best write-ups I have seen on NLT in a long time.

Keep up the good work!

As an aside, the captcha phrase I have to type in is "cherokee expansionism" -- how ironic is that?

I say focus on Kelo and other like cases. Perhaps it might make sense to ask what the constitutional definition of commerce that is not interstate is (clearly there must be such a thing, or the "interstate commerce" clause has no meaning. Would it be worth asking why Congress has the right to tell us what kind of light bulbs we may use?

Yes, this is a good post, but it pokes a sore spot, considering Supreme Court nominees during the current political... (what term?) ....regime. We are going to have to live with whoever the justice is for such a darned long time. I keep hoping that we will get a reverse Souter, as in someone who is supposed to be liberal, but then takes liberality seriously and rules other than expected. That would be nice. Wishful thinking.

I love the idea of creating a conservative chatter about the Constitution, but at this point it is so buried under the load of permanent government that referring to it feels like begging the question of its relevance. That we have to raise issues through definition -- interstate commerce or "takings" -- is an indication of how un-moored we are from our foundation.

However, if Obama presses the idea of privacy when it comes to abortion, can't people can press back on the subject as it relates to other issues, like the ones Richard mentions, above?

I'm commenting on polls, not courts.

Arizona lawmakers have sent a statute to the governor that requires state and local police to enforce Federal Immigration laws in a pro-active fashion. It permits and urges authorities to demand proof of legal resident status from anyone they think (not suspect) may be an illegal alien.

When polled, 73% of respondents say they support the legislation. However, 53% say they believe the law violates the US Constitution.

Is the problem with the polling, or with the people?

The answer to all the above questions is rational basis review. This is the standard the court applies when it finds that the right in question is not a fundamental right.

In Roe v. Wade the court found a fundamental right to abortion, but since this decision it has determined that there is no fundamental right to abortion. Roe=fundamental right/strict scrutiny, Casey= trend away from fundamental right/intermediate scrutiny/undue burden, In Gonzales v. Carhart (2007) undue burden of Casey=rational basis=no fundamental right.

On freedom of Contract the rule is Energy Reserves Group v. Kansas Power &Light Co. (1983) (1) is there a substantial impairment of a contractural relationship (2) if so, does it serve a significant and legitimate public purpose; and (3) if so, does is it reasonably related to achieving the goal? In other words rational basis.

Kelo is rational basis, because public purpose can be painted with broad brush, government can take land to promote economic development. The outline of regulatory takings rules are clear: 1) Loretto: any permanent physical occupation of an owner's property which is governmentally authorized consitutes a taking of property for which just compensation must be paid. Note that in Kelo governmentally authorized taking did require just compensation, but there was no fundamental right to be free of this taking provided one received compensation and the state had a compelling interest. Note: the government doesn't have to pay you compensation if it permits individuals to excercise the right to free expression or petition upon your property if this is not a permanent physical invasion (see Pruneyard) 2) Lucas when a regulation denies all economically beneficial use it is a taking and the government must pay just compensation. 3) Penn Central replaces the test of justice holmes in Penn Coal that ruled that dimunition of economic value was measured by a numerator/denominator test. The new test is Penn Central and interference with distinct investment backed expectations.

I think the pick will be Napolitano, and the Arizona illegal immigrant law is the tie-breaker, if any were needed. The pick will show the right at its worst, and Napolitano will be able to persuade some conservative Republicans that she is up on the terror issue (based on classified info), and that they should have confidence in her to make prudent decisions on national security law. She is of Italian ancestry but is a Protestant. The fact that she was on the Anita Hill defense/offense team doesn't hurt either.

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