Obama Sides With....The Bush Supreme Court?

Obama has been disappointing a lot of Democrats lately. The netroots are unhappy with how seriously he seems to take them as a constituency. He split with Democratic colleagues on FISA, supporting immunity for telecom companies. And yesterday, he disagreed with the Supreme Court ruling against the death penalty for child rapists — siding with the four most right-wing judges on the court.

The majority ruled struck down a Louisiana law that permitted the execution for child rape — a crime which, while obviously completely heinous, did not itself justify expanding the application of the death penalty. "The death penalty is not a proportional punishment for the rape of a child," wrote Justice Anthony Kennedy in the majority opinion, saying that capital punishment would constitute cruel and unusual punishment for any crime other than murder.

Yesterday, Obama disagreed with that ruling:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes. I think that the rape of a small child, 6 or 8 years old, is a heinous crime," he said, adding that if a state determines the death penalty should apply in such cases, they should be allowed to impose it.

This is significant on two fronts. First, it is significant because it expands Obama's position on capital punishment. While he actually has said repeatedly that the death penalty should be reserved for the most heinous of crimes, this is an expansion of the term "heinous" that may discomfit a lot of democrats, even those who support capital punishment for murder.

It is also significant because he is siding with what is not only the McCain court, but also the Bush court — the the reliably right-wing judges who almost always vote as a block. It is this block — Anonin Scalia, John Roberts, Samuel Alito and Clarence Thomas that is cited warningly by Democrats speaking of how the court has moved to the right, this block that Democrats want to counter with upcoming Supreme Court appointments, lest those appointments instead go to more right-wing justices, giving the right an official majority on the court. Right now, the court essentially swings around Kennedy, the deciding vote on this 5-4 decision (he swung the other way today on the Second Amendment case).

So, overall, it's surprising that Obama would come out this way. Or maybe it isn't — as the Wall Street Journal's Law Blog pointed out, Obama has "made notable steps toward the center of the political spectrum in recent weeks" (see evidence here). As for picking your battles, it's pretty hard to find a constituency more unsympathetic than child rapists. As Jeff Toobin said yesterday on CNN, "child rape is such a horrendous crime and all of us have such a natural revulsion towards it that you're never going to get a lot of support for any sort of reduction in sentence." This makes it a safe decision for Obama to tack right on (as opposed to, say, abortion) — and allows him to agree with John McCain on something (as opposed to, say, abortion).

Abortion is the kneejerk issue most often cited in the battle for the court — mea culpa — but it is obviously far from the only issue at stake. In his book, The Nine: Inside the Secret World of the Supreme Court, Toobin warns that a conservative court will also seek to dismantle affirmative action and enable and/or expedite executions. According to Toobin, national sentiment has swung away from the death penalty over the past decade; it is also notable that the Court has circumscribed the death penalty around a narrow field, outlawing the death penalty for murderers under 18 (2005) and for the mentally retarded (2002). Even more notable: The majorities in both these cases were the same as today's majority of Kennedy, John Paul Stevens , Ruth Bader Ginsburg, Stephen Breyer, and David Souter, except in 2002, it included Sandra Day O'Connor. The court, as we all know, has changed since then.

As the court adjourns for the summer, not to reassemble until just a month before the presidential election, its future will no doubt come up. Control of the Supreme Court is at stake in this election in a very real way — Stevens is 88, Ginsburg is 75 — and it is highly likely that the next president will make an appointment. Central to that discussion will be the question of what kind of court this country should want for the long term, and what kind of president will make the appointments necessary to achieve that. By taking an expansive position on capital punishment and siding with the Bush-and-McCain wing of the Court, Obama just made that distinction less clear-cut. Perhaps that was the point.

Obama backs death for child rapists [Political Intelligence - Boston Globe]
Obama Condemns Supreme Court Decision in Child Rape Case [WSJ Law Blog]
Toobin: A McCain Court Could Overturn Roe In "Maybe A Year" [ETP]
In McCain's Court [New Yorker]

Comments

[rebeccaj]

Speak for yourself, Rachel!

Obama hasn't upset THIS Democrat.

I have been disappointed by all the whining by fellow Democrats in the middle of one of the most important presidential campaigns since FDR was elected.

You do NOT speak for me, Rachel.

NOT AT ALL.

[HumeSkeptic]

Death penalty is pure revenge and punishment. It has no demonstrated deterrent effect on murder rate. In fact, many countries where there is no death penalty have lower murder rates.

What is puzzling about this eye-for-an-eye punishment, even for murder, is that it is inconsistent with how we punish for other crimes. We don't rape a rapist, for example.

Besides the above, there is, of course, the problem that if a mistake is made, there is no corrective action possible after death penalty.

What is disappointing is that 0bama (intentionally misspelled to get around the bad word filter) seems capable of a more thoughtful and rational analysis of issues, rather than arbitrarily deciding what is "heinous".

.

[Heavenhelpusall]

Obama knows the constitution. Many seem to want him to be the candidate that suits their own special needs, he must represent a nation. Have patience and faith.

[lawchic]

HuffPost's Pick

This is why I hate the political atmosphere. Republicans, Democrats, Progressives, Conservatives, if you don't automatically fulfill certain requirements then purists will call for your head on a stick, or at least try to get you kicked out of the "gang." People want all or nothing, and that is NOT going to happen.

1) Iraq: Does anybody realistically believe that the troops are going to be out in 16 months if Obama gets in office? Honestly? I never did. I always thought that it was helpful that Obama had an exit strategy, but there are too many variables to demand absolutism when the situation is changing everyday. Its amazing that the same people that were criticizing Bush for staying the course and making decisions in a bubble, would have me believe that Obama should implement an exit strategy that he created without knowing all the facts, or circumstances on the grounds. or that he should call for a firm withdrawal date when he doesn't know the effect it will have the Iraqis or the troops. Sorry, but I'm just not that naive.

2) I just can't say that I am against the death penalty in all cases. I guess I need to mail in my progressive card.

3) FISA. I think Obama needs to have his feet held to the fire on this one, but just because I disagree with his position/rationale on this issue doesn't mean I think he is a wolf in sheep's clothing.

[allseasons]

Remember the Repugs keep labeling BHO as the "most liberal member in the US Senate." They hope that the horrible L word will chase the voters away. BHO has to counter this somehow in order to get elected. How can the Repugs continue to assail as "most liberal" when he has taken stances similar to McSame? This is a cleaver effective campaign ploy. Go Obama!

[Kyuzo]

While child rape is a heinous crime that is among the most severe imaginable, I believe the Supreme Court was correct in ruling that the death penalty is an inappropriate punishment.

It seems unfathomable to execute someone for raping an adult, and supposedly all people are equal under the law. I am generally against the death penalty in any case (I find it hard to say "killing people is wrong" while in the same breath saying "if you do it, we'll kill you"), but I am especially against it in non-murder cases.

[texanna]

Of the three policy switches that Obama has made, only the FISA position is really problematic for me. i really don't understand how a lawyer who has taught constitutional law can take the position he's taken on this legislation. Where is the agent of change when we need him? He is all too ready to give away my civil right to protection from search and seizure of my telecommunications and that makes me wonder which of my other rights he would find it OK to eviscerate.

[JamesA1102]

I think the problem is with the Netroots. The hate the Clintons so the supported Obama as the anti-Clinton candidate and projected all their opinions on to him without really looking at his entire record. They did the same thing 4 years ago with Dean because he was against the war ignoring Dean's A rating from the NRA, his support for the conferate flag and his record as one of the most conservative, pro-business Democratic governors in the country.

[Paz3]

The rape of a young child will effectively take away that child's life for the rest of that life. So, in many, if not most, ways, it is like murder; only in this case the *victim* has to suffer for a lifetime.
I suggest that anyone not familiar with the results of sexual abuse, particularly when visited upon children - who most decidedly deserve their innocence - refrain from commenting on this.
I am against capital punishment, but child rape must be treated by the states as if it were murder - because it is a murder of the spirit.

[onceler]

enough with the concern trolling. you don't like Obama, we all know. you're probably one of those spiteful McCain supporters. somehow, you fail to mention Obama's stance on the Supreme Court's findings on detainees at Guantanamo? which is, of course, the most important of their recent decisions.

but gee, that would interfere with your Obama-bashing party, wouldn't it?

you really want a Dem candidate Obama being accused of being soft on child rapists? sorry, but you are clueless as a political analyst. you really want McCain to win this? why?

[Steamboater]

This is the problem with Obama I've mentioned several times in past posts. When you have someone (and in this case a black man who a good portion of voters might be hestitant to vote for and one who many still think is a Muslim although he's not), he's going to have to try and make it seem to them he's one of them, and that's very risky business, especially for those who supported him and thought 'progressive' was his middle name. It's not and that's very clear now. So many at Huffpost were bitching that Hillary Clinton was the one you couldn't trust, that she was right of center--too far right--to support and now I see Obama is someone I can't trust to uphold progressive values. if he becomes president I think he'll pick right-of-center supreme court judges and that's just not good enough. In fact, it stinks. his FISA decision was clearly a slap in the face to many who support him. A lot of us will stay home elction day. I want change--REAL CHANGE--and we won't get that from Obama.

Obama refused to commit to bringing all the troops home from Iraq by 2013. Why aren't progressives pushing him to change his mind so that this war really ends and way before 2013? We want it over with and while Obama talks about ending the war, he never says when he will do it. Certainly not by even 2013. It's pathetic.

[heal57]

I think I agree with Obama on this one. I am an Independent. Raping a young child should have a threat of the death penalty. We have disrespected children [and women to a point] in this country for too long. While I disagree with the conservatives on the Supreme Court on almost every issue, this is one where I just could go with the death penalty in a horriffic child rape.

[leftcoastliberal]

Sadly, it looks like the far left has already achieved Nader 2000 levels of counterproductive, snarky cynicism. They are convinced that any divergence from their ideology is either a Republican Neanderthal or guilty of pandering to R.N.s. Someone needs to introduce these group-thinkers to the concept of honest disagreement. (And knowing how fond the left is of ad hominem attacks, I feel obliged to ad here that I'm not a Republican and am a strong opponent of the death penalty in all cases.)

[strifeknot]

These are not minor divergences, they are frighteningly serious. Supporting FISA, trading away civil liberrties for political expediency is not a trifle. Supporting the death penalty at all is unacceptable; supporting it for rapists is beyond unacceptable

"Oh, but whatever will we do? Surely we can't support the Republicans. So, dear pandering, capitulating, triangulating Dems, you get our votes once again. Don't go and do anything crazy like changing or distinguishing yourselves in any fashion!"

Nader '08.

[FearlessFreep]

If Obama's denunciation of the Supreme Court's striking down the death penalty for child rape doesn't illustrate what Ralph Nader meant by "talking white," I don't know what would.

[onceler]

since your name gives you away as a Freeper, you might want to consider that everyone here knows you're a right wing tool before you even open your mouth. Ralph Nader's old, incontinent ass doesn't know jack crap about black culture in America, or Barack Obama as a candidate. Nader is a racist, an anti-women's rights stealth candidate who sided with the Republicans on Terri Schaivo, and told his "followers", mindless sheep that you all are, that Bush was the superior choice over Gore, because at least with Bush "you know what you're getting". Nader is a completely useless person who once did decent work. it has been decades since he did anything useful, though. and now, he just embarrasses himself every time he talks.

[Gogetter]

"If Obama's denunciation of the Supreme Court's striking down the death penalty for child rape doesn't illustrate what Ralph Nader meant by "talking white," I don't know what would."
Nader is ignorant. And if your point is that Obama's view is one that no black person can hold, you're ignorant too.

[RTIII]

Not ONLY is this a bizarre viewpoint...

It also absolutely rejects the notion that we have seriously broken "criminal justice system."

It would be one thing if death-row cases were flawless, but they are FAR FROM IT. Look at all the conviction reversals in recent years due to DNA evidence. It's a large fraction of the total. While I don't have the numbers handy, perhaps a quarter of all convictions on capital cases are later overturned due to DNA proof.

Given the troubles with our prosecutorial system, expanding death penalty applicability is ABSOLUTELY HORRIFIC and unconscionable.

We're learning more about the Big O all the time - I'm starting to think: orifice, as in the reverse end....

[wutzhappn]

"I could no more disown progressives than I could disown my own....."

[onceler]

you have no idea what you're talking about. do some research about the work Obama has done getting plenty of racially-skewed crimes REMOVED from the roster of those to which the death penalty applies. just look into it a bit, so you don't reveal complete lack of knowledge of the subject you're attempting to address.

[RTIII]

No YOU have no idea what I was talking about.

I know what I was talking about and I think I said it rather clearly; Our court-system is sufficiently broken that convictions cannot be trusted sufficiently to put someone to death with confidence of guilt, and I'm shocked and dismayed that Big O either doesn't know this or disregards it.

This has nothing to do with whatever else Big O may or may not have done - I didn't bring anything else up, either.

[jhamm1]

At the very least, each and every day seems to unearth another of Obama's inperfections, certainly not sufficient to justify plunging the world into another era of chaos by the perpetual equivalent of Bush 3.

As one who was raped at age 3, i don't consider such crimes as even remotely proportionate to murder, and furhter agree with numerous studies which suggest that sexual traumas sustained prior to puberty are easier to recover from than rape sustained after age 13

[onceler]

this has got to be the single most bogus comment I've seen on any blog in a good 6 months or so...