Of presidents, courts and the rule of law

By BRAD WARTHEN
Editorial Page Editor
AT THE OUTSET, John McCain had a great head start with me — on experience, national security, foreign affairs, bipartisanship, and his oft-demonstrated willingness to do the right thing regardless of political consequences.
    As Labor Day approached, I began to doubt. First, he picked Sarah Palin. I don’t have as low an opinion of her as many seem to, but she’s no Joe Lieberman. Then, Sen. McCain ran a particularly ham-handed fall campaign, one that simply did not communicate his virtues clearly to the voters. As I had with Bob Dole in 1996, I wondered: If he can’t run a campaign, how can he run the country?
    But my doubts ended during the third debate. Sen. Barack Obama “won” on style, on cool, on demeanor, much as John Kennedy did in 1960. But I was paying attention to what they said. That’s when I decided I had to stick with McCain.
    Let’s consider several things they said about one subject, judicial selection.
    This column is not about abortion. I knew already that I disagreed with Obama about abortion. I’m a Catholic, and I’m not a Joe Biden kind of Catholic. But I’ve supported Democrats (such as Sen. Lieberman) who didn’t challenge their party on abortion; I’m not a single-issue voter.
    Aside from abortion itself, I find Roe v. Wade appalling in two ways: I don’t find a “right to privacy” in the Constitution. Secondly, the ruling has had a devastatingly polarizing effect on our politics. My respect for the rule of law is such that I’d be willing to put up with the political division for a ruling rightly decided, but this one didn’t qualify.
    So the sooner Roe is overturned, the better. Obama strongly disagrees. And in rationalizing what he sees as the imperative to protect Roe, he turns against several other important principles that I believe a president should respect, from the separation of powers to the proper role of politics.
    I’ll review each of these points briefly, starting with the one that concerns me least:
    Sen. Obama seems to judge court rulings based more on their policy effects than on legal reasoning. In his autobiography, Dreams from My Father, he wrote, “The answers I find in law books don’t always satisfy me — for every Brown v. Board of Education I find a score of cases where conscience is sacrificed to expedience or greed.” That hinted to me that he cares more about good outcomes than law. But I forgot about it until I heard him say in the debate that “I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.” That third qualification disturbed me because it seemed to demand a political sensibility on the part of judges, but I wasn’t sure.
    Much harder to overlook is the hard fact that despite his opposition to Roe, John McCain voted to confirm two Clinton nominees, Justices  Stephen Breyer and Ruth Bader Ginsburg. Why? “Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences.” Senators should respect the president’s prerogative to the point that they should refuse to confirm only those nominees who are obviously unqualified. “This is a very important issue we’re talking about,” he added. Sen. Obama has had two opportunities in his brief Senate career to confirm highly qualified nominees — Samuel Alito and John Roberts — and voted against both. Yes, confirmation is different from nomination, but I would rather have someone who has demonstrated McCain’s relative freedom from ideology doing the nominating.
    Perhaps worst of all, Sen. Obama was dismissive and misleading regarding the proper roles of the states with regard to the federal government, and the political branches with regard to the judiciary. Regarding Roe, Sen. McCain said, “I thought it was a bad decision.... I think that... should rest in the hands of the states. I’m a federalist.” He was saying abortion law should be returned to state legislatures, where we make most of our laws, rather than having it in a special, hands-off category.
    In answering, Mr. Obama shocked me in two ways, saying “I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.”
    If a right to privacy exists, it is at best inferred from the Constitution. The author of the “right,” Justice William O. Douglas, found it in “penumbras” and “emanations.” And yet Sen. Obama equated it to the very first rights that the Framers chose to set out in black and white, and subject to ratification. That a Harvard-trained attorney would do that may not boggle your mind, but it surely does mine.
    Then there’s that bit about not subjecting such a hallowed “right” to “state referendum,” or “popular vote.” Sen. McCain had suggested nothing of the kind. In a representative democracy, such questions are properly decided neither by plebiscite nor by judicial fiat, but by the representatives elected by the people to make the laws under which we will live.
    There are many issues to consider in this election, from national security to the current economic crisis. I can’t go into all of them in this column. But in just those few moments in that one debate, John McCain clearly demonstrated to me a far greater respect for the proper roles of the president, the Congress, the courts, the states, and the people themselves in making us a nation of laws and not of men.

Go to thestate.com/bradsblog/.

Comments

[p.m.]

Good column, Brad.

[greg]

An American that has not read "rules for radicals" is not be able to judge Obama.
Brad, your reasoning is pre-Obama. Read "Rules" and all of this, from his campaign, his tactics, to his ability to dismiss laws as inconvenient, falls into place.
It will make you shutter when, armed with that knowledge, you see how easy it has been for a small group to take our country.
I have never subscribed to the “this is the most important election in our life” theory that we hear every 4 years. But with a veto proof Senate, a GOP unworthy of honorable behavior, and a hard core socialist trained in the muck and mire of Chicago backroom politics…our world has changed. And as a free man, I believe it has changed for the worse.
Those Obama supporters should to be aware of the old saying…be careful what you wish for as it might come true”. Your time has come. Enjoy it while you can.

[Guero]

Mr. Warthen, Mr. Warthen, you've just confirmed your constitutional law and legal analytical skills are on the same level as Sarah Palin's. Just plain ignorant is a good place to start, but seriously biased is, I'm afraid, more accurate. Your right-wing radicalism is disguised but that is what is disturbing, not Mr. Obama's views.

Just a brief commentary on your false comparison between Breyer/Ginsburg vs Alito/Roberts confirmation votes. B/G both had long judicial records as moderates. Ginsburg had a more conservative record as a federal appeals court judge than your sex-crazed whackjob Ken Starr.

A/R both had long records as conservative activists who would not hesitate(as they've shown already) to judically legislate extreme state's rights positions. Conservatives have long chafed at the "imposition" of the Bill of Rights on the states by using the 14th Amendment. A/R were both legitimately opposed for their rightwing activism on the bench.

There is no doubt the B/G vs A/R nominations and the right to privacy are closely linked.

Your philosophy is extreme and radical. Your opposition to the right to privacy is very bluntly, religion-driven. Your Roman Catholicism hated it when Connecticut was banned from criminalizing birth control pills. Admit it, Mr. Warthen, you believe all contraception pills should be banned.
You'll probably ignore my request but I have no doubts your religion commands opposition to birth control pills and believes government should enforce your religion's view.

Throw in your Republicanism, which you coyly deny, and your McSame argument is totally to be expected.

Your religion drives your view of the right to privacy and that is to be feared. You and your ilks' imposition of your religious values on the rest of us must be zealously fought. Barry Goldwater almost had it right, a zealous opposition to religiously imposed values in the defense of liberty is no vice.

Your ex cathedra view of the right to privacy logically leads to your being shocked at Obama's view of the rights of Americans. I'm not surprised your mind is boggled. Religion-driven minds often are.

So the right ot privacy is not in the Constituion, Mr. Warthen. Help me out here Mr. Warthen and answer some questions for me, Mr. Warthen.

Tell us Mr. Warthen, give your readers the cite please, for the section of the Constitution that explicitly states Americans are presumed innocent until proved guilty in a criminal court of law?

Tell us Mr. Warthen, give us the citation for the Constitutional right to a fair trial. Just where in the Constitution is it Mr. Warthen?

Tell us Mr. Warthen, where the right to vote is explicitly set out in the Constitution?

Tell us Mr. Warthen, where is the right for heterosexuals(or anyone else for that matter) to marry in the Constitution? Tell us the section, Mr. Warthen.

Tell us Mr. Warthen where the right to travel is in the Constitution? Can you give us that cite Mr. Warthen?

I am glad to see your extreme views coming out Mr. Warthen. Just be honest and start putting your column in the Religion section of your shrinking newspaper. That would be it's proper role.

[bud]

Brad, you didn't articulate anything new here. Same ole nonsense about Roe v Wade being and infringent on State's Rights. Damn right it's an infringement, and properly so. It's becoming a sick joke to read your hyper pro-Catholic rationalization to oppose abortion yet at the same time completely ignore the Catholic Church when it comes to war making. Do you just go to Mass on the days they talk about abortion and skip the war days? It's hypocricy to the nth degree.

[Randy E]

As a Catholic, I cringe at the anti-Catholic rhetoric. But, I have to agree about the double standard Brad is exhibiting with pro-life and pro-war. From the Catholic dogma regarding a just war:

the damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;

all other means of putting an end to it must have been shown to be impractical or ineffective;

Combine the two. "Sadam" was in no position to be an aggressor, he was boxed in, and we could have continued with other means to deal with him because there was time. After all, the WHOLE case made to us was that we couldn't "wait for the mushroom cloud" and NO SUCH WMDs existed in Iraq.

I suspect Brad will offer up neo-con talking points about what a bad guy Sadam was. If so, I wonder where are our similar efforts to curtail Niyazov, Mugabe, Shwe, and especially al-Bashir in Sudan.

There have been 88,000 civilian casualties in Iraq as of Oct 2008. That includes children sitting in their own house reading a book or sitting on their father's lap laughing, and mothers who are no longer around to take care of the surviving children.

That's what happens when you "bomb bomb bomb" in a war. From an ivory tower, whether in DC with a group of neo-cons, or in a newspaper office, this cost of war is apparently abstract and therefore unimportant.

[dave]

Bud, if you're going to toss around big and important sounding words like "hypocrisy," you may want to check their spelling. Just sayin.

Brad, throughout this campaign you have steadfastly refused to allow any new revelation concerning Obamas' f terrorist associations, communist bent or relationships, criminal taint (Rezko), political thuggery (attempted destruction of Joe the plumber) or murderous disregard for abortion survivors sway or diminish you moon-eyed support for this yahoo.

Pardon me if your internal agonizing and teeth gnashing about supporting McCain over Obama now strikes me as not a little ridiculous.

Catholic shmatholic. I don't care WHAT someone calls themselves. Not being a Christian stalwart in the voting booth and voting for candidates who hold Christian positions and promise to employ those positions in office makes ones' self labels seem very silly.

[p.m.]

Good column, Brad.

[bud]

Dave, since you like to lecture folks about spelling how "Obama's" instead of "Obamas' ". We'll see Tuesday if the country has matured enough to reject the phony smears about Obama. McCain's time has passed him by. It's time to look forward to a prosperous, peaceful future with Obama at the helm. All the fear and smear tactics could not hide the fact that Obama is a far more ethical, intelligent and gifted leader than McCain. The future is now. VOTE OBAMA!

[Randy E]

Dave, why don't you share with us Obama's attempt to destroy Joe the Plumber - exactly what did he do?

You do mean THE Joe the Plumber, the guy who's not really a plumber, right? The guy who really wasn't buying a business as he said. The guy who agreed that Obama as president will result in the destruction of Israel. The guy who would actually get a bigger tax break from Obama. The guy who contributed to McCain then asked Obama a question that Obama took the time to answer.

McCain apologized to JtP for bringing him into the spotlight when he mentioned him 21 times in the debate. He then blamed Obama for brining JtP into the spotlight. Then he smeared Obama by claiming Obama libelled JtP because the press vetted him and learned that he had liens against him and that he lied to Obama.

Did you cut and paste that post from Rush's website or did you study it enough to retype it from memory?

[bud]

This is a great example of a poorly decided Supreme Court decision. It has to do with medicinal marijuana in California. The court ruled against states rights based on the interstate commerce clause. It was actually the liberals on the court, along with Scalia, who got this wrong. Clarence Thomas in a rare split with Scalia got this one right.

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/06/AR2005060600564.html

[dave]

And I am NOT attempting to demean your devotion to your church, although I may have been clumsy while making my point. My point is that I do not understand and have difficulty mustering a lot of respect for anyone who claims to be a devout Christian and yet expresses profound doubt and uncertainty about what he ought to do in the voting booth...whether he claims to be Catholic, Baptist or Mormon. People 2000 years ago didn't get to vote - the only vote they had was to either to accept Christ or not and then live a life that reflected that choice. For me,
living the life that reflects that choice naturally extends to what I do behind the voting booth curtain. I don't see how it cannot, and I do not allow arcane, esoteric debates about federalism, states rights or other gobbledy gook
get me off track.

David

[dave]

I guess I hit a nerve, huh Bud?

Good. I enjoy lecturing you, and I also enjoy the effect those lectures have on you. Given your tendencies to rant and foam, another opportunity to teach will present itself anon.

David

[david]

Randy, in an arguement, people always lead with their best shot. Out of all of the points I made about Obamas' thuggery, communist beliefs, terrorist and criminal relationships, murderous abortion stance and support for Black Liberation Theology, your best shot is to quibble about Obamas' support for the destruction of Joe the Plumber.

Wow.

That's a pretty illuminating insight about the lengths to which Obama supporters must go to make their case.

David

[p.m.]

Randy, did you not hear about Obama's people trying to dig up welfare records on Joe the Plumber, or did you just choose to ignore the information because it contradicts your false image of a plurally racial, perfectly fair messiah, except for his unfathomable position on abortion?

Yeah, that's right, Randy, the guy you said doesn't want the government to control us tried to use that government against good ol' Joe the Plumber, the little guy.

Behold Obama, the black Nixon.

But good ol' bud says, "It's time to look forward to a prosperous, peaceful future with Obama at the helm."

If it weren't Sunday morning, I might just take a drink.

[dave]

Whether Joe has credentials as a plumber really misses the point doesn't it? I mean really, this is intentional grounding of the football. Plumber or not, all this guy did was have the temerity to ask a question of Saint Obama. Wow! Can't have that. Especially if the question exposes the fraud Obama is perpetrating.

Dave

[pg]

A homerun, sir. That is the most articulate, intelligent and classy editorial I have read from your - or any other, for that matter - paper in a long time.

[matt]

If you're going to follow the Church lock-step, what about divorce? There is no divorce in the Catholic Church. You can get a civil divorce, but in the eyes of the Church you're still married. You can get an annulment, but that's just gaming the system. Like the just war argument, it seems weak to tie your religion in with policy if you only pick and choose beliefs.

[jfk]

These are the real issues which should decide this campaign. And they are not religious issues — for war and hunger and ignorance and despair know no religious barriers.

But because I am a Catholic, and no Catholic has ever been elected president, the real issues in this campaign have been obscured — perhaps deliberately, in some quarters less responsible than this. So it is apparently necessary for me to state once again not what kind of church I believe in — for that should be important only to me — but what kind of America I believe in.

I believe in an America where the separation of church and state is absolute, where no Catholic prelate would tell the president (should he be Catholic) how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference; and where no man is denied public office merely because his religion differs from the president who might appoint him or the people who might elect him.

I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.

[JimT]

If a right to privacy exists in the Constitution, then it exists. Whether it is inferred or not is really irrelevant, if the final conclusion is that it exists. I don't know why that is so shocking.

As to Obama's vote against Alito and Roberts, that was a rejection of ideological choices. If you don't think those two were chosen for their ideological positions, you are only fooling yourself. In that regard, Obama's vote against them was a vote for what you want: a rejection of ideology over legal qualification.

[p.m.]

Hey, jfk, I hate to tell you, but a Catholic guy named Kennedy was already elected president back in the 1960s, so you're dead wrong. :)

But I would like to say, once again:

Good column, Brad.

[p.m.]

No, JimT, Obama's vote against Alito and Roberts were votes favoring Obama's preferred ideology over legal qualification, exactly what Brad said he didn't want.

And something inferred from the law has less legal status than something explicit in the law -- the Supreme Court can change an inference (it could overtune Roe v. Wade, which itself is an inference at least once removed) -- but it can't literally change the Constitution.

[Phillip]

A thoughtful column, Brad, and you make some strong points. I respect McCain's apparent standards in voting for Supreme Court justices and I recognize the argument against Obama's stance. I look forward to McCain's voting for Obama's first SCOTUS nominee!

Two thoughts come to mind: one is that I wish your passion for keeping this nation a nation "of laws and not of men", a passion I share, would have been so strongly expressed as regards some of the abuses of the current administration, the embrace of the unitary executive theory by Cheney et al, the overreach in general on the part of the executive branch with potential real costs to civil liberties. As others have pointed out, when the argument runs towards your liking, (surveillance, arbitrary detention of individuals, etc.) you'll happily wink and nod at the bending of laws. If the argument is on something you oppose, (abortion) you'll vehemently wave the flag of "original intent" etc.

Your comments about the "right to privacy" are also slightly in need of clarification, are a little misleading.

Justice Douglas' "penumbras" (established in Griswold v. Connecticut) were already no longer the main rationale for Roe v. Wade or for Lawrence v. Texas (the 86 sodomy statute case)....Much more germane to the Court's decisions in this regard, the foundation for the right to privacy argument, was Justice Harlan's dissent in Poe v. Ullman, which actually preceded Griswold.

Harlan's dissent was based on the 14th Amendment's Due Process Clause, and it stands as the real (to many of us) common-sense explanation of the right to privacy, including these very powerful words:

"This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints."

In other words, (as Guero points out) the Constitution does not imply that all areas not specifically mentioned within it are "open terrain" in which the government can operate and by doing so regulate or apply mandates to aspects of citizens' lives.

[p.m.]

Hah! Overturn, not overtune. What overtones does that slip have?

[p.m.]

Your quote, Phillip, just means that you, or judges, or Guero, no matter how high-falutin' you try to make it sound, can twist the law when it suits you just like you accused Brad of doing, to say your point of view fits the rights continuum.

If I connect all the constitutional dots, I don't find a right to abortion or socialism, so I'm voting AGAINST Obama.

Good column, Brad.

[Phillip]

Well, pm, certainly the argument will continue for some time about this doctrine. I was just simply trying to point out that Harlan's use of the 14th Amendment due process clause is the basis for Roe and other decisions, not Douglas's vague "penumbra."

If you take socialism to be the government's unwarranted intrusion into the lives of its citizens in terms of those citizens' right to pursue their free-market prerogatives, I would remind you that not every protection against that is written into the Constitution explicitly. I would think that a fear of socialism might make you sympathetic to the concept of a right of privacy.