Night of the Living Constitution

An Obama judiciary would be a plainly liberal one. Not surprisingly, Obama has endorsed the idea of a "living Constitution," one judges adapt to meet the needs of a changing society. A living Constitution has its analogue in what might be called a "living U.S. Code," by which judges rewrite federal statutes they regard as somehow deficient, which for Obama could mean statutes having an adverse impact on people "who need protection." Obama's model justice is Earl Warren, who saw the role of the Court as that of doing justice, regardless of what the law at issue in a case might say. The senator must have cringed when he heard John Roberts, during his confirmation hearing to be chief justice, answer a question about what the biggest threats to the rule of law might be by saying there was really only one threat--that of judges who take their "authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law. .  .  . Judges have to recognize that their role is a limited one. That is the basis of their legitimacy."

This election plainly poses the question, if voters realize it or not, of whether we want judges like Roberts or judges eager to extend their authority beyond what is legitimate and erase the venerable distinction between law and politics. This question will be there even if no Supreme Court vacancies occur during the next four years. For the next president will certainly name judges to the federal appeals courts. At the usual turnover rate, if Obama is elected, by the end of his four-year term eight of the twelve regular circuits could have majorities appointed by Democratic presidents. By the same measure, if McCain is elected, every one of the twelve circuits, including the notoriously liberal Ninth Circuit, could have a Republican-appointed majority. The appellate courts are especially important today because, with the Supreme Court deciding many fewer cases than it used to, they effectively function as the courts of final appeal in their jurisdictions.

Just as the appeals courts could go either way, so could the Supreme Court: a President McCain could have the opportunity to create a conservative majority or a President Obama could have the chance to create a liberal majority. On the other hand, it's possible that the composition of the Court when the next election rolls around will be the same as it is today. The same justices could be sitting in their same chairs. They would be four years older, and they would have served four more years. And Justice Stevens, age 92, would hold that record.

Terry Eastland is the publisher of THE WEEKLY STANDARD.