Back when Obama was running against Clinton, and a group of deeply misguided people decided that if they didn’t like the outcome of that they would vote for McCain, I endeavored to make clear the one result I knew for sure would come from that: McCain would be able to nominate justices to the Supreme Court of the United States (henceforth, “SCOTUS”).
Let me make something clear: SCOTUS interprets the Constitution. These Justices don’t take these cases and plug them into a Constitutional or Not? program that gives them an answer. And if it’s gotten all the way up to SCOTUS, it’s an issue that is not easily resolved. Each Justice is theoretically interpreting from a neutral, law- and policy-based perspective. However, each Justice comes to the bench with assumptions, with biases, and with different angles of interpretation, and all of those things figure into the decisions they make.
Americans love to believe that the Constitution guarantees them their rights, and that it guarantees them those rights as they think they have always had them. It helps us sleep at night, I suppose. But many of the rights we have (or don’t have) were decided by Supreme Court Justices. SCOTUS is the final arbiter of what is constitutional (see Marbury v. Madison and judicial review), and that means that the question of what is constitutional could have a different answer with even a slight change in the political leanings of the court.
With that in mind, let’s look at the Justices of SCOTUS. If you read their takes on the issues, and don’t worry about how they might vote on issues that are close to your heart, and don’t worry about how Ginsburg retiring in the next presidential term will affect the balance, then you are no doubt sleeping better than I am. I can only imagine the kind of replacement Paul or Santorum would nominate.
Conservative. Has written some opinions I disagree with, but I can’t complain about his diligence in applying the law and his willingness to accept precedent he disagrees with if he does not see the law as actually bad. However, he often votes with the more conservative Justices. Completely anti-abortion rights and anti-family planning. Not a fan of federal funding for healthcare. Not wild about alternative energy resources, but digs mining. (Heh. Get it? Digs?) Is not entirely cool with the Patriot act. Would like the separation between church and state to be much thinner.
Side note: Obama voted against his confirmation.
Very conservative. Applies both textualism and originalism to his interpretations of the Constitution, which in effect makes him a constitutional fundamentalist. Scalia claims this makes him more objective. Others have argued that this means he can interpret the Constitution any way he wants to, including according to his personal beliefs. Has repeatedly asked his fellow Justices to strike down Roe v. Wade. Dissented the Romer v. Evans, Lawrence v. Texas and Hamdi v. Rumsfeld decisions. Concurred in Gonzales v. Raich. Voted with Thomas to strike down Miranda v. Arizona. Just a couple of examples.
Additionally, gay rights are out the window. Religion in schools is totally great, immigrants kinda suck, and go coal, all the way.
Appointed by Reagan
Kennedy is an interesting Justice, as his ideologies are mixed, thus often making him the unpredictable swing vote in a given case. Has shown no intention of overturning Roe v. Wade, but appears to have joined with O’Connor on Planned Parenthood v. Casey because he felt it added restrictions to Roe. Authored both Romer v. Evans and Lawrence v. Texas, but voted to uphold the Boy Scouts of America’s right to ban homosexuals in Boy Scouts v. Dale. Wrote Boumediene v. Bush.
Justice Clarence Thomas
Appointed by winged monkeys
Thomas is mostly known for the Anita Hill scandal that surrounded his confirmation and the current questions about whose corporate pockets he is in. Like Scalia, both a textualist and originalist, and the two vote together the majority of the time. His originalism might even be more extreme than Scalia’s, though, and he tends to cite not just the so-called original intent of the framers, but social mores at the time of the framing. Thomas went from claiming during his confirmation hearings that he’d never thought about or discussed Roe v. Wade while in law school (lost Senator Leahy’s confirmation vote over it, too) to eventually saying it was wrongly decided and should be overturned. Was lone dissenter on the Safford Unified School District v. Redding decision, because he thinks it’s cool for kids to be strip searched.
Ruth Bader Ginsburg
Appointed by Clinton
Got confirmed by a huge majority despite practically stonewalling the confirmation committee on major issues. Fierce advocate of abortion rights, although she’s criticized Roe in the past—not for legalizing abortion, but for how it did it, and the weaknesses inherent in the decision. She’s not wrong. She intends to retire in 2015: that’s the next presidential term, folks.
<== Would you fuck with this woman? Oh hells, no. We need more Justices like her. Too bad Evelyn Baker Lang is a fictional character.
Disagrees with originalism, tends to vote more liberally. Believes that the Constitution was intended to maximize the liberty experienced by citizens, and prefers to interpret it thus. Often described as a pragmatist. Staunch supporter of abortion rights. Believes that the GLBT community is a constitutionally protected class. Not besties with the corporations. Not crazy about the Patriot Act. Loves the idea of limits on political campaign donations.
Side note: may also be a unicorn.
Samuel Anthony Alito, Jr.
Appointed by G.W. Bush
Has a conservative voting record, but doesn’t always vote along with Scalia and Thomas. Has not requested that SCOTUS overturn Roe, but has stated that he would like the opportunity to see whether it could and should be overturned. Tends to be pro-corporation. Political asylum for immigrants is only okay if they are facing forced abortion or birth control. Fan of 3 Strikes sentencing laws. Fine with religious expression in schools. Opposes limits on political campaign donations.
Note: McCain wanted to see more SCOTUS Justices like this guy. Yay!
Fairly moderate. Doesn’t favor abortion rights, necessarily, but will work with the precedent set by Roe. While not necessarily anti-GLBT, comes down strongly on the side of First Amendment protection of homophobic and offensive speech and picketing of funerals. Fan of federally funded healthcare. Strongly for immigration rights (personal issue to her). Dislikes Patriot Act. Has a less awkward smile than Alito.
Side note: has only been a Justice since 2009. Hard to tell what kind of Justice she will be.
Appointed by Obama
Kagan was appointed in 2010. As with Sotomayor, not a lot to work with. Kagan is interesting—wanted to ban the military from campus because of Don’t Ask, Don’t Tell, but defended DOMA because it was made into law. Conservatives believe she will be a guaranteed vote for gay rights. That remains to be seen. Advocates campaign finance reform. Fan of alternative energy, seems to think breathing is a good thing. Generally pretty cool with the Patriot Act. Overall, on the liberal side of moderate, or possibly vice versa.
Right now, liberally-minded people are in a bit of a bind, because we are stuck between a weak and a crazy place. Seems to me, the political picture looks a bit like this:
Part of the issue, of course, is that right now the two primary parties in this country have largely forgotten themselves—who they are and why they even exist. They’ve become lost in the mire that is politics, and right now the viable candidates for both have failed to impress. The Republicans are stronger, because they have no problem breaking the rules and salting the earth to get what they want out of political negotiations, and the Democrats are less terrifying, but seem to accomplish virtually nothing in comparison. Also, right now the candidates for the parties fall somewhere on these respective spectra:
(Click on them if the blurring is as irritating to you as it is to me)
So, what to do?
I’ve seen three solutions to the problem:
1. Vote for Obama anyway.
2. Vote for Ron Paul.
3. Vote some other third party and stick it to the 2-party system.
If I leave the first option alone, since I already discussed Obama here, and pretend that people aren’t seriously considering the racist, homophobic, anti-EPA, pro-religion in schools, anti-separation of church and state wingnut that is Ron Paul (discussed beautifully and thoroughly, with sources, here), I still have to consider the third.
If a third party were to come up with a strong candidate—one with actual political experience, one who knows how the system works and can be strong within it, and one with enough charisma to carry a country, now would be the time. This country is filled with people who are disgruntled, angry, depressed, and disappointed. If ever there were a time to vote outside the two-party system, it’s now.
But here is why I don’t buy the third party argument, and I am
plagiarizingexpanding on a reply I gave to thoughtful commenter Dana:
Let’s pretend we have a viable third-party candidate (we don’t). I still seriously doubt the option, because everybody who is disgruntled with the current situation would have to do it. The only way to make that statement is to get everybody (or at least a majority) to sign onto it and proudly and publicly so that other people won’t worry about being castigated or ridiculed for throwing votes away. Unless they vote for Nader, because, duh.
Every time somebody brings up a third party option, it’s like we are daring each other to break the mold, but ultimately we all know that not enough people will take up the dare and go with it, and that if not enough people take the dare, everybody will get hurt.
I would love for my country to prove me wrong on this, but my pessimism is getting the better of me.
So, people who insist that voting for a third party is the answer to all of our problems: How about finding a viable third-party candidate who is strong enough to make people consider voting outside of the two party system, and if you think you have such a candidate, do you know a feasible† solution to getting enough people to vote for them without simply handing the election to a party that appears to be actively trying to destroy our country?
†By “feasible” I mean, “will actually work.”
ETA: There’s no good answer for the 2012 elections forthcoming, so I am putting forth my own third-party candidate:
Note: Beyonce + “Knock Knock, Motherfucker” belong to The Bloggess (if you haven’t read the relevant blog post, because you live under a rock in a barn in a cave in TibeChinAfrica, it’s here). The godawful Photoshop job is all me. Yeah, baby.