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June 27, 2008

Is Obama's reaction to SCOTUS rulings an example of new or old politics?

I have not blogged the political impact of the Supreme Court's work in Kennedy and Heller, in part because I want to focus on theory and dotrine before turning to politics.  Nevertheless, this effective Time article, headlined "Obama's Supreme Move to the Center," captures the intriguing developing political story surrounding the Supreme Court's recent work.  Here is how the piece starts:

When the Supreme Court issues rulings on hot-button issues like gun control and the death penalty in the middle of a presidential campaign, Republicans could be excused for thinking they'll have the perfect opportunity to paint their Democratic opponent as an out-of-touch social liberal. But while Barack Obama may be ranked as one of the Senate's most liberal members, his reactions to this week's controversial court decisions showed yet again how he is carefully moving to the center ahead of the fall campaign.

On Wednesday, after the Supreme Court ruled that the death penalty was unconstitutional in cases of child rape, Obama surprised some observers by siding with the hardline minority of Justices Scalia, Thomas, Roberts and Alito.  At a press conference after the decision, Obama said, "I think that the rape of a small child, six or eight years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Then Thursday, after Justice Scalia released his majority opinion knocking down the city of Washington's ban on handguns, Obama said in a statement, "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures.  The Supreme Court has now endorsed that view."

June 27, 2008 at 09:07 AM | Permalink


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Another take on Obama's shifting positions is offered by Charles Krauthammer in today's Washington Post:


The op-ed opens as follows, with a quotation from an Obama spokesman eight months ago:

"To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."

-- Obama spokesman Bill Burton, Oct. 24, 2007

"That was then: Democratic primaries to be won, netroot lefties to be seduced. With all that (and Hillary Clinton) out of the way, Obama now says he'll vote in favor of the new FISA bill that gives the telecom companies blanket immunity for post-Sept. 11 eavesdropping.

"Back then, in the yesteryear of primary season, he thoroughly trashed the North American Free Trade Agreement, pledging to force a renegotiation, take "the hammer" to Canada and Mexico and threaten unilateral abrogation.

"Today the hammer is holstered. Obama calls his previous NAFTA rhetoric "overheated" and essentially endorses what one of his senior economic advisers privately told the Canadians: The anti-trade stuff was nothing more than populist posturing.

"Nor is there much left of his primary season pledge to meet "without preconditions" with Iran's Mahmoud Ahmadinejad. There will be "preparations," you see, which are being spun by his aides into the functional equivalent of preconditions...." ###

In my opinion, there are actually two questions here. One is whether Obama is, contrary to his claim, an old-style politician who "adjusts" his views to get votes. I will leave that to others to discuss, at least for the moment.

The other question goes to the merits of each issue. Whether NAFTA is a good idea or not doesn't depend on whether Obama is a hypocrite or a panderer.

Likewise with the wisdom of meeting with the Iranian mullahs without preconditions. Or enacting a revised FISA statute that confers retroactive immunity.

Because Obama is running for president, his character is a legitimate issue (as of course is McCain's). But it should not be confused with the merits of the issues he discusses.

This is true of both the rulings in Heller and Kennedy v. Louisiana. The death penalty for child rape is no more valid or invalid because of what Obama says about it. The one area where Obama's position IS relevant on the merits is on the question whether there is a national consensus against capital punishment for child rapists. The fact that Obama, a liberal and talented politician by anyone's standard, feels that it's wise to make a point of denouncing the majority ruling is evidence that, in fact, and contrary to Justice Kennedy's weak and porous analysis of this point, no such consensus exists.

It's not proof. But it is evidence.

Posted by: Bill Otis | Jun 27, 2008 10:56:58 AM

I would suggest a new term "Obomination," for such death-based political maneuverings as the Obama statement on Kennedy, especially considering his past statements on the gang violence bill, posture during the Illinois wrongful conviction debacle, etc. Obama is not ignorant of the real legal issues surrounding the Kennedy case. For him to pretty much ignore them (on both sides) in his statement is (more recent) evidence that he is a political prevaricator of the highest order! Barack, we know ye not!

Posted by: Bill Arthur | Jun 27, 2008 11:34:20 AM

Opponents of the death penalty should take comfort in the obvious dishonesty of Obama's swing to the center for the sole purpose of winning the election. He will return to undermining the death penalty if and when he wins the election.

Posted by: Kent Scheidegger | Jun 27, 2008 1:02:15 PM

Hah! David Brooks was right. Conservative Republicans (and I would add, liberal Democrats) are saps of the highest order, at points. What did you think you were dealing with, Kent? He overthrew the most powerful Democratic machine around. You apparently believe we were nominating a Marxist.

If you honestly believe that Senator Obama is an abolitionist you are profoundly misguided. He certainly managed to attract abolitionist voters because he pushed a bill that required taped confessions in homicide cases...but that was a procedural protection. It had nothing to do with substantive opposition to the death penalty. He made it quite clear he supports capital punishment for "heinous" crimes, without, of course, bothering to define that...which gives him plenty of wiggle room with the American public.

This entire dance is a charade. Obama knows the weaknesses of the majority opinion, and he has never been an abolitionist. He can legitimately critique their reasoning without flip flopping. I happen to oppose the death penalty in all its shapes and forms, but I also happen to believe that was a very poorly reasoned decision. Given that it was Justice Kennedy, that is perhaps no surprise.

"Obvious dishonesty" indeed. There is one justice who believes the death penalty is unconstitutional. That justice was appointed by a conservative Republican. Nice try.

Posted by: Alec | Jun 28, 2008 1:38:06 AM

Gerald Ford, a conservative Republican . . . . Alec, you cannot be taken seriously.

Posted by: federalist | Jun 28, 2008 9:58:59 PM


Ford was so non-conservative that, although a sitting President, he was nearly denied the 1976 nomination by Ronald Reagan. But even if Ford had been conservative, he could not have successfully nominated a conservative for the Supreme Court. Post-Watergate, the Senate was firmly in the control of the Democrats. No conservative nominee would have had a snowball's chance of getting confirmed.

Posted by: Bill Otis | Jun 28, 2008 10:40:52 PM

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