Non-answers to non-questions


“Why are candidates silent on Supreme Court?” wonders CNN’s Senior Legal Analyst Jeffrey Toobin. He, too, seems to have noted the absence of the Supreme Court as a presidential campaign topic.

Jeffrey ToobinJeffrey Toobin | CNN

But while I did at least offer a feeble explanation rooted in my unwavering belief in chief justice John Roberts’ political mastery, Toobin’s write-up doesn’t even attempt answer his own question.

And what’s worse, he tries to evade the non-answer by modulating his question into a non-question:

With a little more than a month to go, it’s not too late to ask the candidates to take a stand on their plans for the court. […] [W]hat does Obama, a former law professor, think about the court? […] [D]oes he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.

By the same token, what kind of justices would Romney appoint? Who are his judicial role models?

Really? These are the questions we need to ask?

I mean, it’s fine for politicians to pretend that the Supreme Court is apolitical. But the fact is we all know which kind of justices Obama or Romney would nominate. It’s so obvious is doesn’t even make for a rhetorical question.

Toobin is right, though, that the electorate seems painfully oblivious to the consequences of these choices.

So we don’t have to ask the candidates which kind of justices they would appoint. We have to ask the public what kind of Supreme Court they want for the next 30 years.


Supreme Court a notable non-issue


If it was the intention of Chief Justice John Roberts to get the Supreme Court out of the line of fire with his health care ruling, he sure succeeded. The Republican and Democratic conventions are over, and I do not recall a single mention of the critical importance of future Supreme Court nominations.

2012 Republican National Convention

2012 Republican National Convention | (Mark Wilson / Getty Images) / SA

It was refreshing to see, of course, that the Democrats finally embraced their health care law, rather than being scared of their own courage, as they usually appear. President Barack Obama indeed used the narrow chance that Roberts’ ruling had offered him.

Still, I was surprised that Obama did not even indirectly refer to the need for occupying the White House in order to avoid losing the Supreme Court.

After all, many on the left seem disappointed with Obama’s lack of ideological purity, and the resulting lack of voter turnout can be a decisive factor in the election. One of the few reasons for these people to still wish for Obama’s victory should be the horrors that a solidified conservative majority on the Supreme Court would mean to them.

The Republicans, too, refrained from any Supreme Court agitation. Branding Roberts as a left-wing traitor and pointing to the need to appoint more severe conservatives is apparently not considered opportune. Or maybe the prospect of four more years of an Obama administration causes enough horror to energize the Republican base.

So it appears that people get all worked up when the Supreme Court makes decisions they don’t like. But when it comes to electing a president who decides the court’s future, they are more concerned about the proper treatment of the candidate’s dog than about which people he would appoint to the court.

Roberts’ Supreme Court legacy: Men, not laws


September 5, 2005: President George W. Bush announces the nomination of John Roberts for chief justice of the Supreme Court | Paul Morse

Some assert that a formidable jurist like Chief Justice John Roberts would never be guided by anything but his constitutional scholarship. That is, after all, what we expect from a Supreme Court justice. But more plentiful and more thrilling, of course, were the opinions on the health care ruling that had Roberts in turn furthering, fearing, or sabotaging a liberal, conservative, or neutrality agenda. | More →