A Conspiracy of Silence

Earlier in the week, the NY Times ran a story on the sorts of judges and Justices a President McCain or a President Obama would appoint. I was interviewed for the piece, and most of my comments (not quoted) were to the effect that the courts are a low priority item in every Presidential election, and that in this one, even for someone like me, who cares a great deal about them, they'd have to rank behind: 1) Avoiding further economic meltdown; 2) averting further environmental catastrophe; and 3) advancing national security by diminishing the U.S. military presence in Iraq and doing what's necessary to stabilize Afghanistan (which is not necessarily what either candidate is proposing).

I did acknowledge that judicial appointments are valuable in mobilizing each party's base, and I floated a theory to explain why neither Republican nor Democratic Presidential candidates like to talk about the courts when swing voters are listening. The Republican story is easier. The vast majority of Americans, if they have any views about the courts, have views about abortion and that's it. In this respect, Sarah Palin is a perfect mirror. If you're dealing with voters who can only identify Roe v. Wade, mentioning the courts to a general audience is a losing proposition, for a majority of Americans don't think Roe should be overruled (which is not to say they understand exactly what this means).

Meanwhile, for Democrats, the problem is just about everything else. On nearly every major constitutional issue other than abortion, a minority of American voters hold the liberal position. To wit: affirmative action, the death penalty, rights of criminal suspects more broadly, and school prayer. So any sort of in-depth discussion of the courts could go against the Democrat quickly.

For those who care, here's what I was quoted saying in the Times story:

“McCain is a social conservative, and he’s given every indication that his appointees would be conservative, especially since that’s the traditional way to repay the Republican base for helping elect you,” said Michael Dorf, a professor at Cornell Law School and a former clerk for Justice Anthony M. Kennedy. “Obama’s whole message, meanwhile, is about uniting people and listening to the other side. And he is close to a number of core centrist Democratic thinkers about the court, so it’s likely that he would pick people who are fairly centrist.”

Now, obviously, moderation and centrism are in the eye of the beholder, so people I think of as moderates/centrists would certainly be regarded as liberals by the right. The notion of centrism I gave the reporter was confirmability in a Senate with fewer than 60 Democrats. Stephen Breyer was my prime example.

Posted by Mike Dorf