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]