Over the weekend, Republican Vice-President candidate Sarah Palin attacked Barack Obama during campaign stops in Colorado, California, and Nebraska for his ties to former Chicago radical William Ayers. Palin charged that Obama “pals around with terrorists who target their own country” because he “sees America as imperfect.”
Responding to criticisms that she was recycling used
material, Plain insisted Obama’s relationship with Ayers “has been known but hasn’t been talked about.” Even if this is correct, fact-checking organizations are taking umbrage over the use of the term “pals” to describe the relationship. The Associated Press reprimanded Palin’s characterization, saying it was “unsubstantiated and carried a racially tinged subject that John McCain himself may come to regret.”The specific GOP tactics in this matter may be born of polling desperation but the strategy behind them is one the McCain campaign has followed all along. In difficult, important times such as these, it argues, Americans cannot risk electing a President with radical associates and views.
For its part, the Obama campaign has lately been trying its best to portray McCain as the more radical choice, describing him as erratic and out-of-touch. Their latest ad attacks the provision in McCain’s healthcare plan that taxes employee health benefits for the first time without mentioning the credit McCain would provide to help offset the increase. Politico has already criticized a previous Obama ad along these same lines as “barely true.”
So much for the fervent promises by both candidates to forego deceptive, negative campaigning.
If there is an area where one candidate is clearly more radical, it is over whom they are likely to appoint to the Supreme Court. In this case, McCain stands out as the radical. The problem is not that his choices would be more ideologically driven, although they would be no less ideologically driven either. Rather it is the way in which McCain’s picks would be far more prone to change the current balance of the Court than would Obama’s likely choices.
For the past several decades, the Court has teetered on a precarious balance between a liberal faction and a conservative faction, with one or two moderate Justices in the middle providing the all-important swing votes on controversial issues. President Bush’s two appointments – Chief Justice Roberts in place of Rehnquist and, especially, Justice Alito in place of O’Connor – weighted the balance further in favor of conservatives without tipping it altogether.
Today, there are four usually dependable conservative votes and four usually dependable liberal ones, with Justice Kennedy providing the sole middle-of-the-road swing vote. The key difference between the two ideological factions is their relative ages.
On average, the liberal Justices are a full fifteen years older than the conservative ones. Justice Scalia, at age seventy-two, is the only conservative Justice over seventy, with Roberts and Alito still in their fifties. By contrast, Justice Souter, at age sixty-nine is the only liberal justice under seventy, with Justice Stevens, at age eighty-eight, one of the oldest serving Court members in history.
Based on this alone, there is a chance the next President could appoint at least three Supreme Court Justices. If Obama wins the election, speculation is widespread that Justices Stevens, Ginsberg, and Souter will all retire in order to give the new Democratic President an opportunity to replace them with younger, like-minded Justices. The conventional wisdom further assumes such choices will pass a Democratically-controlled Senate.
Yet even if Obama were able to fill all of these slots, the dynamic of the Court will not have moved one iota from its traditional and current quasi-equilibrium. Only by turning one of the current conservative or moderate slots liberal can Obama fundamentally change the ongoing course of the Court. This seems much less likely, given that moderate Kennedy is the same age as conservative Scalia.
On the other hand, following a McCain victory in November, the liberal Justices will be much more hesitant about retiring and a Democratic Senate less inclined to confirm his appointments. However, their advanced ages raises the likelihood of death or forced retirement among the liberal Justices, due to illness or other infirmity. McCain need turn only one of the liberal or moderate slots conservative to finally shift the balance of the Court in the direction that Republican Presidents have been trying to send it, with limited success, since Reagan. If multiple appointments become necessary, McCain could make a conservative shift in the Court overwhelming and long-lasting.
Deeply polarizing issues are likely to continue coming before the Court. Abortion rights are the most obvious, followed closely by the continuing viability of civil liberties in a post-September 11 age. The Legislative and Executive Branches are unlikely to suffer less from partisan polarization than they do today. In light of this, most moderates, Independents, and other undecided swing voters might well like to see the current uneasy stability of the Court continue or at least accept it as unavoidable.
If that is true, McCain is the far more radical candidate in this regard. Obama can “do his worst” and will only result in upholding the status quo. McCain, with a single appointment, can change the Court’s probable decisions on a plethora of controversial topics for decades to come.
That is something worth thinking about as the Court takes up its business again on this first Monday in October. Instead of heels and gloves, the time has come in this election cycle to seriously consider the potential fashion statement of judicial robes. Basic black is always in style and now is not the time to be courting a more radical Judiciary.
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