Hillary's Supporters and the Supreme Court

According to various polls, as many as 25% of the voters who say they support Hillary Clinton are unsure whether they will support Barack Obama. Hillary Clinton's speech at the Democratic Convention no doubt persuaded many of those voters to support Obama. But some will continue to equivocate. What can they possibly be thinking?

As Clinton emphasized at the Convention, on almost every important issue for which a voter would support her, Barack Obama is easily the better choice than John McCain. Whether the issue is health care, the war in Iraq, the economy, the environment, taxes, education, or energy policy, Clinton is much closer to Obama than to McCain.

There are several reasons why Clinton supporters might nonetheless prefer McCain to Obama. First, they might agree with McCain on the issues, but supported Clinton because they want to see a woman elected president. Second, they might agree with Clinton and Obama on the issues, but for reasons relating to Obama's race or experience might be uneasy about Obama as a potential president. Third, they might be angry with Obama, his supporters, or the Democratic Party for "unfairly" denying Clinton the nomination, and might therefore want to "punish" them and deter such "unfairness" in the future by electing McCain. Fourth, they might be so committed to the (eventual) election of Hillary Clinton as president that they are willing to support McCain in 2008 in order to set up Clinton for 2012.

Hillary Clinton's speech at the Convention should have a significant impact on her supporters, especially those in the second, third and fourth categories. I want to address an issue, mentioned but not emphasized by Clinton, which should be of considerable importance to most of her supporters: the Supreme Court of the United States.

The current makeup of the Supreme Court renders it the most conservative group of justices in living memory. Seven of the nine justices were appointed by Republican presidents, four of the current justices (Scalia, Thomas, Roberts and Alito) are more conservative than any other justice to serve in the past half-century, and there is no "liberal" justice on the current Court (even Ginsburg and Breyer are a far cry from justices like William Brennan, Thurgood Marshall, Earl Warren and William Douglas). Indeed, as Justice Stevens has observed, every appointment to the Court in the past thirty years has moved the Court to the right (that is, every justice appointed in the past thirty years was more conservative than the justice he or she replaced).

Should this matter to the supporters of Hillary Clinton (at least those in my second, third, and fourth categories)? You bet it should. On issues like abortion, racial discrimination, violence against women, women's rights, voting rights, gay rights, free speech, freedom of religion, gun control, educational equality, and personal privacy, the Supreme Court has a profound impact on our society.

Twice before in recent presidential elections, Democratic voters have sat on their hands, with dire consequences for the Supreme Court and the nation. In 1968, many traditionally Democratic voters, angry at the party's nomination of Hubert Humphrey, "punished the party" by staying home on election day, enabling the election of Richard Nixon. Even putting aside such issues as the Vietnam War and Watergate, the election of Richard Nixon had a devastating impact on the Supreme Court. Nixon appointed four justices during his tenure. Had Hubert Humphrey made those nominations, we would never have heard of William Rehnquist and Warren Burger. The direction and substance of constitutional law would have been dramatically and irrevocably different than it is today.

More recently, in 2000, many traditionally Democratic voters naively cast their ballots for Ralph Nader, enabling the election of George W. Bush. Even putting aside such issues as the war in Iraq and torture, the election of George W. Bush again had a devastating impact on the Supreme Court. Bush was able to appoint two extremely conservative (and young) justices, John Roberts and Samuel Alito, who are likely to shape the direction and substance of constitutional law for many decades to come. Had Al Gore made those nominations, we would today have had a Supreme Court much more attuned to the interests of those who support Hillary Clinton.

The conventional wisdom is that the next president is likely to have two or three nominations to the Supreme Court, and the positions most likely to be filled are those currently held by the more moderate justices. The difference between a Supreme Court that includes two or three new justices appointed by John McCain and a Court that includes two or three new justices appointed by Barack of Obama should be of great concern to those who share Hillary Clinton's commitment to justice, fairness, and equality. They should put aside their anger and frustration aside, as well as their too-clever strategies for future elections, and heed Hillary Clinton's advice: in the interests of their children and their children's children, and in the interests of their nation, they should support Barack Obama. Their Constitution depends on it.

Comments

[formerprosecutor]

The age thing: Comparison : Scalia, 1936; Souter,1936; Thomas, 1948; Ginsberg, 1933; Roberts,1955; Alito, 1950; Breyer,1938; Souter, 1939; Kennedy; 1936; Stevens; 1920.
CLINTON, 1947. How is it she is too old?

[Badger84]

It would be great to see Sen. Clinton on the Supreme Court. She has the intellectual strength to challenge Scalia and the chamber of commerce hacks appointed by Bush I & II.

[jcwtts1]

It would be a disaster to put her on the court. We need young justices. Seriously, I mean 40 year old women and men of all races and orientation, but young enough to last with Roberts et al. The four conservatives on the court will last between 20-30 more years. Hillary will be 70 in 8. We have to start thinking strategically. Young and wildly liberal. They put on young and wildly conservative. We have to match them or we're all in trouble.

J

[formerprosecutor]

Nobody 40 has the wisdom to be appointed to SCOTUS, nobody. (though you and they may think they do)

[musselmanm]

This week, the class shown by Hillary Clinton would have made her our nominee if she would have chosen a different direction for her campaign.
The lady has regained my high esteem with her support of our party, our nominee and our country.
Hillary, no crap! We need your help in our hour of need. Please give your best for us all.
I know we let you down but just as we need your husband and Vice President Gore and all of the rest of our patriots, we need you leading our fight.
Whatever future you go on to, you have made me proud.

[jcwtts1]

You still don't get it. Obama was a dramatically better candidate. It had nothing to do with class.

[DLB]

"... and there is no "liberal" justice on the current Court (even Ginsburg and Breyer are a far cry from justices like William Brennan, Thurgood Marshall, Earl Warren and William Douglas)."

There are currently 4 "liberal" justices on the U.S. Supreme Court: Ginsburg, Breyer, Stevens, and Souter (the last two justices listed, Stevens and Souter, chosen by republican presidents, have proved to be disastrous choices). They may be more conservative than the person they replaced (and I highly, highly doubt that after the "Kelo v. City of New London" decision), but to say they are not "liberal", is false.

[jcwtts1]

I disagree. They are conservatives appointed by conservatives. They just view the constitution rationally unlike Scalia et al.

Clinton had two supreme court appointments and picked older moderates. A disaster. What we need is to win two terms and replace all 5 of the not neo/ultra con justices with liberals. For Clarence Thomas to replace Thurgood Marshall is a travesty. But you have to win and once in you have to have the stones to make the pick.

[DLB]

What needs to happen is for ALL justices who view the U.S. Constitution as a "living document" be replaced by justices who realize that it needs to be amended as times change, not be re-interpreted as times change - . Just as the U.S. Constitution mandates, and the Founders envisioned.

As Scalia once argued at a forum with the president of the ACLU, we should NEVER give one political ideology the control over the Supreme Court, lest we are comfortable when the opposition controls it with their ideology. Keep the judiciary neutral. A lesson too late for FDR.

[knighthowl]

There is no liberal on the Supreme Court. This country has been governed by conservatives for so long now that you do not remember what a liberal is. I seriously doubt that the Warren Court would have decided the Kelo decision as this court did. In this single instance, the more conservative justices were correct, but their rulings in so many other cases have taken the court in a pro-corporation, anti-individual direction that will take decades to correct.

[BlueOnBlue]

The Supreme Court aside, the President gets to appoint over 3,000 leadership positions within the government. Only about 600 of these pass through the Senate for confirmation.

Education, social and environmental issues, personal safety, health, transportation and everything else is under their control. Congress gets to pass a few measly bills which may or may not make a difference.

It's the Executive Branch which actually runs things. For eight years, with Republican appointments, they've been doing a miserable job on almost all of these things. A vote for McCain is a vote for continued ineptitude.

McCain will appoint Wall Street bankers to "watch" the banks. He will appoint people who believe in private schooling to oversee public education. He will appoint insurance company executives to run health care. He will be more of the same.

It's not just a choice of McCain versus Obama. It's a choice of all of us being cut off and on our own, or of joining and working together for a better country.

Stop looking at the candidates and start looking at what's at stake.

[esquire07]

"Stop looking at the candidates and start looking at what's at stake."

You are 100% with that comment !!!

However, the main stream or "traditional" corporate media will make the elction seem like a wrestling match. Most Americans cannot point to Europe on a map - don't expect cable fed dumbed down Americans to grasp what is at stake. If that were possible, the lying war criminal Bush would never have been "elected" a second time.

If past is prolouge, you can be Americans are gonna flush the Nation down the toilot and elect McBush.

And, of course, even if Obama recieves the majority of votes, the odds are the Republican lie, death, torture, war, machine will run rampant with corruption and steal the election as in 00,and 04.

Never underestimate the ignorance and stupidity of Americans. The "Greatest" Nation in the whole wide world !!! Lol

[turkeyfish]

I largely agree with you, but lets not get so cynical as to sideline ourselves into ineffectiveness. If your ideas are right, they are worth fighting for. Contribute to Obama until it hurts and do some real leg work till you are sore. Keep a close eye on and stand up to their political and corporate operatives, because, as you know, the dirty tricks, vote rigging, disinformation, illegal contributions, voter suppression efforts, smears, efforts to promote racism and division, and the full range of anti-Christian conduct that has become the hallmark of modern republicans is coming. Do something useful, rather than whine. Leave the whining for republicans.

Yes, most humans are ignorant in many, many ways. That calls for education on many levels. This election certainly is a good place to start. We all certainly know that a further drift toward republicanism will doom this great country; bankrupt it before our very eyes. If we don't start turning things around now, it will probably be too late in 4 or 8 years the debt payments on the deficits for more tax breaks for billionaires is already starting to squeeze out the operation of vital government services and maintenance of the infrastructure that supports our economy and way of life.

While many like the McCaines, have homes overseas to escape to, not all of us will be able to escape the tragedy that four more years of republicanism will bring us.

Don't get cynical, be an EFFECTIVE agent for change!

[jcwtts1]

More than just a miserable job they have done an illegal job, screening for political party and for ideology in their hiring practices. Madness. We have to win this time, and frankly, we have to get close to a 60 vote majority. But even if we just hold on to the majority by three votes we can use the nuke option the republicans threatened us with, remove the filibuster as an option for judicial appointments and ram through our people. all judges and justices under 47 years of age.

J

[gmgl]

Problem: The people that pushed for feminism and the right to chose a safe abortion over a coat hangers are no longer fertile. The supreme court doesn't effect them anymore personally on choice. They can float from Clinton to McCain and not be affected personally. The younger women take feminism and all it's benefits for granted, often making fun of those who made it possible for them not to worry about safe abortions being available. There are a lot of older women who will put in a protest vote and go for McCain and are saying let the younger thankless generation learn the hard way.

[jcwtts1]

Nonsense. They have daughters, and nieces, and daughters in law, and grand children. If a woman is raped she shouldn't have to carry the baby to term. If a woman will die because of the pregnancy a woman shouldn't have to carry the baby to term. The GOP has no exceptions for rape, incest, life or health of the mother, nothing. Because to them women aren't real, they aren't equal, they are slaves, incubators. If you have no control over your own body you can't be free. At least that is what I thought women believed. After all the 2nd wave feminists went bat sh*t when Hillary lost maybe I've misunderstood how important the issue of choice was all these years. Should I care about this issue if women don't?

J

[BarbaraGordon]

I was surprised that Hillary didn't specifically mention Roe v. Wade last night in her stellar speech. She mentioned "women's issues" but she should have hammered home the fact that, if McCain wins, our civil rights will go down the toilet.

[jcwtts1]

Didn't mention Roe because that would have effectively won the race for Obama and she doesn't really want him to win.

[MA4HRC]

I'm a young woman and abortion is not a high priority on my issues list and there will always be a way to get it done. Moreover, what the hell did we send all of those democrarts to the Senate and house for? They have to confirm the justices and if they are too weak to stand up to republicans, then maybe they shouldn't be in office. In reality, the justices are life time appointments and whether there is a democrat or republican president, they can tell you whatever the hell you want to hear and do whatever the hell they want once in office. They are there to interpret the law and there is never a guarantee that they will interpret it the way that you want, no matter who it is.

[PQuince]

In some states late in the primary calendar, approximately 16% of those who voted for Hillary Clinton said they would vote FOR John McCain in November AGAINST Clinton.
This is one of the least reported facts of the year. As many as one-sixth of Clinton primary voters said they would vote against CLINTON in the general election.
If 25% of her voters hesitate to support Obama, it may be that half or so of those voters would also refuse to support Clinton.
The net has a unique chance to correct the usual media babble by pointing out this weirdly ignored but very revealing fact.
Thanks.

[SimonNZ]

As a man I'll never need an abortion. As a man I won't need equal rights. As a straight man I won't need gay rights. As a white man racial discrimination doesn't affect me . I already have a university degree so educational equality isn't a problem. I'm not religious so freedom of religion isn't important. I'd rather not be shot by a rampaging madman on a killing spree so gun control is of concern, though I hope I'll never be in a situation where it matters.

However, as person I am affected by all these issues. I want to live in a fair society where everyone has equal rights under the law. It is fast becoming apparent that the current Supreme Court is far more right wing than it was, and that its future rulings will strongly favour a conservative agenda. This should be of the utmost concern to all those on whom its decisions have an impact.

So to all those disgruntled Democrats and PUMAs thinking of voting for McBush - go ahead!
It'll hurt you more than me.

[stamper]

Agree 100%, Abortion is no longer personally a right that i will have to use in this lifetime, not gay rights or even universal health care and many other issues facing this country. That doesnt mean that i don't care about the millions of people that do need those rights. That"if it doesn't directly affect me, i don't care about it" attitude is one of the main reasons we are in so much trouble. As for the young woman who says there is always a way to get an abortion, perhaps if you are middle or upper class woman that is true, but surely if you are poor or very young that is surely not the case. Remember the judge who votes against equal rights for something u think you don't need, will one day vote against a right you do need, like upholding the constitution, or not annointing a person president who didnt win the popular vote and lied , cheated and stole to get electoral votes.

[DLB]

Please don't use "upholding the constitution" and "... annointing a person who didn't win the popular vote..." in the same sentence. Somebody might get the impression that you've never read the U.S. Constitution.

[formerprosecutor]

Well said, by a self proclaimed non-stakeholder. I admire people that defend the rights of others , even when their ox isn't getting gored.

[LeftCoastIowan]

The best case (at the convention) for the Supreme Court was made by the Southern woman who was discriminated against in her employment (lower wages for same job), won her case which the company appealed all the way to Supreme Court, which overturned it on the grounds that she should have brought it when the company first started to discriminate, not when she became aware of it. A 5/4 decision, of course!

She has no question about who she is supporting! I forgot her name, but so far I haven't seen that anyone has discussed her very moving speech.

[radicalcentrist44]

They actually applied the law as Congress wrote Title VII. This Congress could have changed it if they wanted to.

[jcwtts1]

the deciding vote against it in the senate, after the house overwhelmingly voted for it, was John McCain. He voted no, said she waited too long. Yet women feel they should vote for this guy over obama. NARAL said that John McCain had NEVER voted for a woman's health bill in 26 years as a senator.

[NHGranite]

I believe that was Lilly Leadbetter who spoke about the job at Goodyear Tire. She was ready to retire when she found out she had been paid less than men for the same job. Guess you have to be psychic or snoop illegally into hr files to get equal pay.

[interestedinpolitics]

If Barack Obama wins the election, I think it would be a good thing to talk about Hillary Clinton being appointed to the Supreme Court. Just a thought.

[SBL]

I think she would be an excellent justice.

[holyhandgrenaid]

She has no experience in constitutional law, nor has she practiced law of any kind in several decades. I would much prefer someone who is qualified to be on the Supreme court, thank you

[Nitehawk]

Earl Warren was Gov of California before he became Chief Justice. He had limited experience in actual law practice.

[WolfLarsen]

Even though all of the current justices were judges before being nominated that has not always been the case. There have been over 40 justices that served with no prior experience as being a judge. All were lawyers but many were Senators and political appointments. Bush's nomination of Miers is the latest example of this. While prior experience as a judge is extremely important it is not a requirement.

I think Hillary would be an excellent justice. But I also feel she could be the most powerful senator in the last 50 years.

[formerprosecutor]

Uh! All attorneys have "Constitutional law" experience. The Consitution is what our body of law is founded on. And you better check the "practicing " law vitae on the last 50 years of Justices.

[MM216]

Not a bad thought but, IMO, she can also do so much good in the Senate. I think if Obama is elected President, he'll need support in Congress. And I think Hillary could do so much to give him that support.
Just my 2 cents....but your thought also has merit.

[threegoal]

Isn't it normal for Supreme Court nominees to have at least some judicial and/or prosecutorial experience? Can anyone cite examples of any recent (30-40 years) nominees without such experience?

[jcwtts1]

Never for Hillary on the court. Too old. I'm not sure prosecutors are on the court, for example Ginsberg was general council for the aclu right? Briar was a law professor?

J

[formerprosecutor]

Clarence Thomas

[mishte]

I think she'd likely run into the same vetting-process snag she ran into with the VP slot. It's pretty rigorous for SCJ, if I recall... she'll decline agreeing to go through the process, just like she did for VP.

[musselmanm]

I want Hillary to be nominated for the Supreme Court by Senator or President Obama!
Now that is some change shat you can believe in!

[HumanRightsActivist]

With Hillary’s preference for identity politics over justice, are we sure she’s a good choice for the supreme court?

Consider that she was one of the prime movers behind the Violence against Women Act.

Joe Biden has often claimed that the Violence against Women Act is the greatest achievement of his career. He also claims that a woman cannot be a perpetrator of domestic violence, despite the fact that hundreds of studies show that women commit acts of domestic violence as often or more often than men. Many studies also show that lesbian women physically attack their intimate partners at higher rates than heterosexual men.

As a result of Biden's Violence against Women Act, the federal government pays states to create laws effectively requiring that innocent men be removed from their homes and families without even an allegation of violence, with no legitimate standards of evidence, when a woman makes a claim that she is afraid.

Elaine Epstein, president of the Massachusetts Bar Association (1999), has said "the facts have become irrelevant... restraining orders are granted to virtually all who apply. Regarding divorce cases, she states "allegations of abuse are now used for tactical advantage". According to Epstein, who is also a former president of the Massachusetts Women’s Bar Association, restraining orders are doled out "like candy" and "in virtually all cases, no notice, meaningful hearing, or impartial weighing of evidence is to be had." Cathy Young reports:

http://www.salon.com/mwt/feature/1999/10/25/restraining_orders/

[optech007]

The part of the Violence Against Women Act that allowed women to sue in federal court was ruled unconstitutional by the Supreme Court. Kennedy, Scalia, and Thomas were in the majority.

[tuttlemsm]

The inaptly named "Human Rights Activist" above also believes that Sarah Palin is the idealized feminist model to which all women should aspire. So consider the source.

[glitz]

I want someone at the Convention to mention the Supreme Court...it is without a doubt one of the most important issues of this campaign!! There will be possibly three openings in the next few years...including the only woman!!! Wake up people, can you just imagine who McCain would put in to sooth the ruffles of the far right? Especially if he happens to pick a VP who believes in CHOICE!!

[rmhenige]

This makes me sick to my stomach, "More recently, in 2000, many traditionally Democratic voters naively cast their ballots for Ralph Nader, enabling the election of George W. Bush. ". I can't believe you overlook the fact that 11% of REGISTERED DEMOCRATS voted for Bush in Florida, or the fact that Democrats ILLEGALLY kept him off the ballot by filing false lawsuits in 2004 (see the Bonusgate scandal). Anyone claiming to be a Democrat should be ashamed of themselves. Let's take a quick look at the issues true progressives consider important and where Obama differs: FISA, election reform, faith based initiatives, "clean " coal, continued Wall Street Bailouts, increasing the military budget, continued support of Israel's occupation of Palestinians, not supporting the impeachment of George Bush, or failing to adopt single payer health care. I could go on, but it wouldn't matter because this country is full of sheep who are blind to the fact that our country has been taken over by corporations and the mainstream media continues to give them a pass. I, for one, refuse to sit idly by as we move toward electing another corporate entity in Obama or McCain. I cannot, and will not support a major party candidate, so don't you dare call my vote for Ralph Nader naive, because I, along with many other concerned Americans, have done my homework and we know that Ralph Nader is BY FAR the most qualified candidate to turn this country around.

Ryan M. Henige