The Oath (47 page)

The Obama administration illustrated a fundamental difference between contemporary Republicans and Democrats. Starting with Ronald Reagan and proceeding through both sets of Bush years, Republicans demonstrated a profound commitment to their vision of the Constitution. There was a Republican judicial agenda for change: expand executive power, end racial preferences intended to assist African Americans, speed up executions, prohibit all forms of gun control, welcome religion into the public sphere, deregulate political campaigns, and, above all, reverse
Roe v. Wade
and allow states to ban abortion. There was a Republican judicial philosophy: originalism. Republican presidents talked publicly about this agenda. They made judicial appointments, including to the lower courts, a major priority. Republican legislators fought for their party’s judicial nominees—and obstructed and harassed Democratic nominees to the courts, even uncontroversial ones.

Barack Obama was not only an outstanding law student and a practicing lawyer but also, as he often pointed out during his first campaign for president, a professor of constitutional law. In the White House, he enjoyed reminding his subordinates of his mastery of legal issues. (On greeting a delegation from his counsel’s office, the president sometimes joked, “Oh, the lawyers! This is the
easy
part of my day.”) But Obama rarely discussed the Constitution outside the Oval Office.

Obama made two sterling appointments to the Supreme Court, and he was justly proud of these accomplishments. But his interest in judicial nominations appeared almost to have begun with Sonia Sotomayor and ended with Elena Kagan. Obama’s lassitude regarding the lower courts was astonishing. In the summer of 2012, when the Senate more or less shut down confirmations until the election, there were 77 vacancies on the federal bench out of a total of about 874 judges. At that point, Obama had failed even to submit nominations for 43 of the judgeships, and Republicans will prevent many of Obama’s 34 nominees from coming up for votes. During Obama’s presidency, Republicans engaged in an unprecedented level of obstruction toward Obama’s judicial nominees; they filibustered and threatened filibusters against more judges than Democrats did in the Bush years. But Republicans could hardly be blamed for blocking judges that Obama failed to nominate in the first place. And since Obama almost never discussed the issue in public,
Republicans faced no political consequences for delaying or obstructing confirmations. In the early days of Obama’s administration, it was plausible to blame this failure on staffers like Greg Craig or Cassandra Butts; by the end of his term, the only reason could be that the president himself chose not to invest his own time or effort in the issue.

For Obama, and Democrats generally, this failure to engage on legal issues extended to more than just judgeships. To the extent there is a contemporary liberal agenda, it consists roughly of a pallid embrace of the status quo: preserve
Roe
and affirmative action. (Support for the rights of gay people may turn out to be an exception to this pervasive timidity. Obama did direct his administration to argue that the Defense of Marriage Act violated the equal protection clause, and announced his support for same-sex marriage.) Both Bill Clinton and Obama also displayed a major commitment to diversity in filling judgeships, and their nominees included dramatically more women and minorities than those of Republican presidents. But it was a lot harder to say what these Democratic judges stood for.

Even after the health care case, it is easy to say what John Roberts stands for. He remains a skilled and powerful advocate for the full Republican agenda; he is still the candidate (in robes) of change. Roberts did refrain from embracing the unprecedented extremism of his conservative colleagues in the health care case; on that occasion, the chief justice acted like a true conservative and deferred, as judges have for seventy-five years, to the elected branches of government on issues relating to managing the economy. But it was folly to pretend that Roberts had discovered his inner moderate. He had not changed, except that he was more powerful than ever. The only thing that is certain about January 20, 2013, is that John Roberts will be there to administer the oath of office.

There was some irony in the conservative embrace of originalism, in the insistence by Scalia and others that the Constitution is “dead” and unchanging. With their success, driven by people, ideas, and money, conservatives proved just how much the Constitution can change, and it did. Obama and his party were the ones who acted like the Constitution remained inert; they hoped the Constitution and the values underlying it would somehow take care of themselves. That has never happened, and it never will. Invariably, inevitably, the Constitution lives.