Obama Needs to Play Offense on the Supreme Court

The Obama campaign spent the last several weeks playing defense on the Supreme Court, siding with the Court's conservatives on gun rights and the availability of the death penalty for child rapists. While these positions raised eyebrows in some progressive circles, they were both legally defensible and politically smart.

But in his focus on playing take away, Obama failed to score points of his own as the Supreme Court's term ended, despite some great opportunities.

For example, the same day the child rape case was decided, the Court handed down an even more important ruling in Exxon Shipping Co. v. Baker, where the Court stripped $2 billion away from 32,000 fishermen and Native Alaskan's whose lives were devastated by the worst oil spill in US history, and gave this money back to Exxon.

At a time when gas prices are at $4.25 and Exxon is pocketing tens of billion in profits a year, this case presented a terrific opportunity to challenge McCain to defend this nakedly activist decision joined by Chief Justice John Roberts and Sam Alito - McCain's model judges -- and to assert that McCain is out of touch with the economic hardships hitting ordinary Americans. Unless I missed something, Obama was silent about this case.

Obama also missed an opportunity on Thursday, when the gun case was handed down, by failing to turn some of the conversation to another 5-4 case decided the same day in which the Court struck down an important part of the McCain-Feingold campaign finance law. This case was a minefield for McCain: his model judges ruled that an important portion of his most significant legislative accomplishment was unconstitutional.

Obama could have also used this case to blame conservatives on the Court for rulings that have limited the effectiveness of our nation's campaign finance system, thereby deflecting some of the criticism of his decision to reject public financing for the fall campaign. Again, all we heard was crickets chirping in Chicago.

Finally, Obama needs to do far more to highlight McCain's assertion that the Court's Guantanamo ruling in Boumediene was one of the "worst in the nation's history." As George Will effectively chronicled, this is a patently ridiculous statement, which Obama could use to tie McCain further to the administration and to define McCain's vision for the Supreme Court. Taking on McCain on this issue could also help quiet some of the angst in the netroots about Obama's moderating position on the FISA issue.

As these examples indicate, Barack Obama has the opportunity to do more than simply neutralize the Supreme Court as an election issue. By focusing on the right cases and the right issues, he can talk about the Supreme Court in ways that simultaneously speaks to Reagan Democrats feeling the economic pinch, and energizes the portions of his base that care deeply about the future of the Supreme Court.

The Obama campaign has promised to play offense this fall. On the Supreme Court, they need to step up to the plate.

Comments

[speakingtruth2power]

The way Doug said it, it sounded like Alaska had to give back the two billion,

but I thought thought that Exxon, had never paid the lower court's fines/ruling.

[FearlessFreep]

"While these positions raised eyebrows in some progressive circles, they were both legally defensible and politically smart."

Wrong on both counts. What's wrong when it's said by a Republican doesn't become right when it's said by Obama. As for political smarts, the people who would have voted against him if he hadn't taken those positions are highly likely to vote against him anyway. Selling out your principles to be on the safe side is rarely well-advised

[S1m0n]

Excellent points; any Obama staffers hanging out here would do well to take note.

[inmyopinion]

Doug - Thanks for pointing this out. I and many Alaskans have been waiting to hear from Obama about this outrageous ruling. The 1-to-1 ratio is completely made up and promises to let corporations off the hook for all kinds of egregious behavior in the future, unless Congress and the next president step in and enact legislation that makes it clear that punitive fines are really, really meant to punish and cannot be capped at such ridiculous levels as to be just a minor cost of doing busiess. The devastating effects of the Exxon Valdez spill continue to this day, and the pro-Exxon Supreme Court ruling was like a second disaster. This cannot be allowed to happen again to the next people whose lives are ruined by some environmental disaster caused by corporate recklessness. I think it's important for Obama, if he's serious about campaiging in Alaska (as is reported to be the case) to at least speak to Alaskans about this 19-years-later diaster.

[oldpotsmuggler]

I see Obama already campaigning not to loose.

I hope I'm wrong.

I mean, not that there's much choice at this late date, but plenty before him have managed to snatch defeat from the jaws of victory.

[rwoodsathome]

You fans of Obama better get used to him having no firm positions on anything. That is why the Democrat establishment love him. They know they can mold him into anything they want. He wants to change the culture in DC, but he does not want to change any of the leadership. The Dems have been in charge for almost 2 full years. They have investigated every toilet flush in the White House for the past eight years and have what to show for it? Lower ratings than the President!

Other than being 1/2 black, good looking, possessing a great smile with a a soothing voice, he brings nothing to the table in the form of commitments. He was against FISA before he for it, before he was against it again. Guns in DC? For, against, for, against. He was against NAFTA before he was for it. Pow-wow with Iran? Yes, no, maybe, it depends ....

By mid October the country will see a laundry list of changed and conflicting positions. In the end, I suspect the country will grow weary of the changing positions and choose McCain.

[zigzag1]

like I'm for immigration reform, then against it, then for it at the Latino Legislators today, off shore drilling, then not, then against Bush millionaire tax cuts then for it.

[oldpotsmuggler]

Thanks for the chuckle. You can Troll all you want but you can't change the economy or Iraq, and that's why the McCain candidacy is dead from the start.

I'm not saying that Obama can't find a way to beat himself (though it doesn't seem likely) but it's pretty clear that old "Crooked Talk" ain't going to get the job done.

Can you say "Bob Dole"?