09/27/2008 05:12 am ET Updated May 25, 2011

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.