On Monday, the Supreme Court will resume hearing cases as it begins the second half of its term. Concern over Justice Ginsburg’s recently-announced cancer has naturally led to speculation about the future of her seat and the Court. At the same time, it seems that political realities will prevent Obama from honoring the wishes of his left-wing base on key questions of foreign policy and national security as well as on some central economic issues.
It is clear that in Afghanistan, and even in Iraq, Obama’s policies will differ little in substance from what we would have had in a McCain presidency or a third Bush term. The new president has already increased the number of U.S. troops in Afghanistan and he has quietly conceded that U.S. soldiers will have to remain in Iraq for some time to come. He has officially ordered the closing of the detention facility at Guantanamo Bay, Cuba within one year, but evidently he has not resolved the question of where the terrorists who are detained there will go or how their cases will be handled. His options are limited and none are good. It seems increasingly likely that Guantanamo will get an extension.
Apart from a few essentially symbolic changes, Obama will of necessity follow the broad outlines, and many of the details, of the Bush policy on surveillance and counterterrorism intelligence. He is fully aware of the political price he and his party would pay if he dismantled the Bush policy and then the country suffered another terrorist attack.
If President Obama’s left-wing supporters ever actually believed that American policy under Obama would be to stop talking tough to Iran and start getting tough with Israel, they will be disappointed. Here, too, the Obama administration’s actual policies, for now at least, will look more like than unlike those of the Bush administration.
Although no one would have predicted it before the economic meltdown in September, it now appears that the same will be true in key areas of economic policy. In the short run, at least, Obama is unlikely to raise anybody’s taxes. In the midst of a recession whose depth and duration is worryingly uncertain, it would be folly for the new president to try to fulfill his campaign promise to “spread the wealth” by increasing the tax burden on corporations and the affluent. And whatever Barack Obama is, he is no fool.
Nancy Pelosi and others on the left fringe of the Democratic Party will squawk about this, but their position is intellectually weak and is regarded as being so even by most liberal economists. Pelosi will have no effective way of holding Obama’s feet to the fire on tax increases, at least for the first two years.
Obama’s top appointments in the areas of national security, foreign affairs and economics reflect the political realities he is facing and signal the trajectory of his policies. As the Los Angeles Times has remarked, “the cabinet nominated by President-elect Barack Obama is a largely centrist and pragmatic collection of politicians and technocrats without a pronounced ideological bent.” The Times no doubt had in mind Republican Robert Gates (Bush’s own Secretary of Defense, whom Obama has chosen to retain in that position), and James L. Jones, who occupy key national security slots, as well as Lawrence Summers and Tim Geithner, who are slated to lead the Obama economic team.
So what will the left get? How will Obama pay his debt to his base and keep them chanting “Yes we can!”?
The left will get huge spending programs, of course, and a “stimulus plan” stuffed with pork. They will probably also get the abolition of the secret ballot in union elections, though here Republicans in Congress will put up a fight.
More sweepingly, the left will get, fully and without dilution, victory on the moral and cultural issues. And this means Obama will deliver a left-liberal litmus test for appointments in the Department of Health and Human Services and related agencies, in the Department of Justice, and in the federal courts. There are two reasons for this: (1) politically, these are the only substantial issues on which Obama can afford to give the left everything it demands; and (2) his own views conform perfectly to the left-liberal orthodoxy on these matters.
Expect Obama’s key judicial nominees, then, to be left-liberals, many drawn from the academic establishment where left-liberal ideology is found in its purest form and where Obama’s own worldview was shaped. Do not, however, expect them to be Daily Kos-style fire-breathers. They will be sophisticated and accomplished people who will be regarded—justly—as possessing the intelligence, training, and temperament that everybody agrees we should be looking for in judicial nominees.
Some legal academics who will certainly be considered for appointment to the top U.S. Courts of Appeal and the Supreme Court of the United States are Yale Law School Dean Harold Hongju Koh, Harvard Law School Dean Elena Kagan (who has drawn the nod from Obama for appointment as Solicitor General of the United States), former Stanford Law School Dean (and ACLU attorney) Kathleen Sullivan, and University of Chicago and Harvard law professor Cass Sunstein (whom Obama has tapped to head the White House Office of Information and Regulatory Affairs).
What Obama’s judicial nominees will have in common is a belief that judicial power may legitimately be used, and should be used to achieve left-liberal moral and political goals. Their belief lacks any basis in the text of the Constitution, the logic of its provisions, or its structure and original understanding, but never mind. Some will propose moving quickly, others more cautiously and gradually, but all will subscribe to one version or another of the idea that the “majestic generalities” of the Constitution (free speech, due process, equal protection) need to be given content by judges reading into them ideas such as abolishing the legal definition of marriage as the conjugal union of husband and wife, extending legal abortion, requiring the public funding of abortion, and invalidating parental notification and informed consent laws and laws affording conscience and religious liberty protection to pro-life physicians, healthcare workers, and pharmacists.
The Obama judges are likely to revive the idea (championed by influential liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme Court) that there is a constitutional right to assisted suicide, and expand constitutional protection of pornography, including “virtual” child pornography that is manufactured without the use of actual children. They will defend preference-based affirmative action policies in hiring and employment as constitutionally warranted efforts to achieve an allegedly compelling state interest in racial, ethnic, and sexual “diversity.” They will likely place further restrictions on religious activities and expression in public schools and other governmental institutions by adopting a broad reading of the “establishment clause” and a narrow reading of the “free exercise” clause of the First Amendment.
We can also expect to see President Obama placate his liberal base on moral and cultural issues through executive orders and the use of his bully-pulpit. Obama has already reversed the Mexico City Policy that prevented American tax dollars from being given to organizations that promote abortions overseas. He has promised to reverse the Bush administration’s restrictions on the funding of embryo-destructive research. He has pledged to repeal the Defense of Marriage Act and to advance the agenda of the “gay” lobby across a wide range of issues.
Will the base be satisfied? Not completely. But the fact is that today many people on the left care more about the moral cultural issues than they do about foreign policy or economics. Their opposition to the war in Iraq and the Bush tax cuts is less intense than their support for “same-sex marriage” and the public funding of abortions. So, many will consider that they got a pretty good deal from Obama, even if he doesn’t reverse course from the Bush administration on foreign affairs and national security policy or raise taxes as quickly or dramatically as he promised.