A little over a week ago, presidential hopefuls Sen. Barack Obama (D-Ill.) and Sen. John McCain (R-Ariz.) subjected themselves to a mild public interrogation by America's foremost self-help guru. In back-to-back interviews conducted before his massive evangelical congregation at Lake Forest, California's Saddleback Church, Rev. Rick Warren, the author of A Purpose Driven Life and other uplifting bestsellers, quizzed the major party frontrunners on matters of politics and faith. When talk turned to the Supreme Court, things really got interesting.
"Which existing Supreme Court justice would you not have nominated?" Warren asked each candidate. McCain responded by naming all four of the Court's current liberals. "With all due respect," he told Warren, "Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens." It was a bold answer, especially given that McCain had actually voted to confirm Ginsburg, Breyer, and Souter (Stevens was nominated to the Court well before McCain's Senate career began). Warren didn't follow-up on that particular inconsistency, of course, though the reason for McCain's transformation isn't hard to guess. The Arizona maverick suddenly cares about the Supreme Court because the conservative voters he's trying to woo happen to care so much about it.
Obama's answer was even more revealing. He quickly named Justice Clarence Thomas, which at first glance isn't such a shock. Obama is the liberal candidate, after all, and he needs to signal his support for abortion rights whenever the subject of the Court comes up. And Thomas has held that Roe v. Wade (1973) should be overturned. But that wasn't how Obama justified his choice. Instead, he essentially described Thomas as an affirmative action case, telling Warren, "I don't think that he...was a strong enough jurist or legal thinker at the time for that elevation."
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Think about that. The presumptive Democratic nominee just employed one of the most common arguments used by opponents of affirmative action: namely, that it gives preferential treatment to the under-qualified based on their race, ethnicity, or gender. (Thomas, by the way, was perfectly fit to serve at that point in his career. The American Bar Association, which evaluates every presidential nominee to the Court, declared him "qualified" after combing through his law review articles, his speeches, and the decisions he wrote as a judge for the U.S. Court of Appeals for the District of Columbia. That he was a qualified black conservative naturally sweetened the deal for President George H.W. Bush.)
Now think about this. Affirmative action is routinely defended on the grounds that it gives qualified minority candidates the shot they deserve but might not otherwise receive. As that line of argument goes, after they get their opportunity, such individuals typically prove their detractors wrong. Now, regardless of what you think about Thomas' aggressive brand of conservative jurisprudence, there's no doubt that he's proven himself a fully capable member of the Court.
In fact, he's one of the few justices today whose principles sometimes trump their politics. Consider his eloquent dissent in Gonzales v. Raich (2005), where the majority struck down California's medical marijuana law in favor of federal anti-drug laws passed under the Commerce Clause. As Thomas noted, the marijuana at issue in the case was both grown and consumed entirely within one state, which is the opposite of any coherent definition of interstate commerce. "If Congress can regulate this under the Commerce Clause," he wrote, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."
Fellow conservative Justice Antonin Scalia, on the other hand, who Obama praised at the Saddleback Forum for his "intellectual brilliance," voted with the majority in Raich, coming down squarely against a government of "limited and enumerated powers." It's safe to say that Scalia and Thomas are both politically hostile to illegal drugs. Yet only Scalia set his constitutional scruples aside that day.
Not that Obama mentioned any of that at Saddleback. Instead, he repeated a demonstrably false charge that dates back to Thomas' confirmation hearings in 1991. Shouldn't Obama be happy that a qualified black justice—even a conservative one—has been proving his intellectual critics wrong for more than a decade?
Apparently not. Lofty rhetoric aside, Obama has been just as guilty of shameless pandering as any other politician. Similarly, McCain's transparent attempt to recast himself as a judicial conservative has been less than persuasive.
With the election less than three months away, Saddleback was a necessary reminder that our would-be leaders are willing to stoop a little low in order to win. That's not exactly change we should believe in.
Damon W. Root is an associate editor of reason.