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Constitutional DriftObama veers to the right, but does he need to take the Constitution with him?

By Doug Kendall and Dahlia LithwickPosted Wednesday, July 9, 2008, at 6:05 PM ET

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Remarks such as these make Obama sound like the careful law professor he's been in the past, patiently explaining to his students why it is inevitable in some cases that judges will rule based on their gut leanings. But this is precisely the wrong way to talk to Americans about judging, and it's guaranteed to turn Obama's advantage into a disadvantage. Inevitable or not, Americans just don't like it when judges rule based on their personal political preferences rather than being guided by the Constitution and the law. A recent Rasmussen poll tested, side-by-side, the McCain and Obama messages about the court. The results: 69 percent of Americans agreed with McCain's message; only 41 percent agreed with Obama's. Obama will lose the war over the Constitution if he keeps pushing, as he's done, for judges with "empathy." Voters see that as code for "latte-sipping, out-of-touch, smarty-pants elitism."

Obama doesn't have to stumble here. Nor should he maintain the curious silence that leaves his supporters wondering about his constitutional values. A growing number of Americans believe the Roberts Court is too conservative. Polls indicate that the public likes progressive judicial results: The public responds favorably to questions asking whether judges should strongly protect civil rights and civil liberties, rule for the powerless over the powerful, and ensure broad access to justice. Put simply, Americans want to live in Justice Stevens' America, not in Clarence Thomas'.

If McCain genuinely thinks it's smart politics to run against the Warren Court in 2008, Obama simply needs to run against the Roberts Court. He must promise to nominate Supreme Court justices who will protect civil liberties, civil rights, and ensure equal access to courts and justice. He needs to talk and talk about these issues not because these are tender, liberal values he wants his judges to share, but because they are values enshrined in the Constitution, values that have been corroded and neglected in recent years.

When Obama talks about nominating justices who will protect the powerless as much as the powerful, he shouldn't just cite pregnant teenage mothers but instead quote the preamble, which lists establishing justice as a pre-eminent goal of the Constitution, and the words "Equal Justice Under Law" enshrined in marble over the Supreme Court's entrance.* When he talks about courts protecting civil rights, civil liberties, and equal protection, he should explain that we fought a Civil War over these principles and we amended the Constitution to enshrine them in our founding document. In recent weeks, it's become easy to forget that Obama is campaigning as a visionary. He needs to carry this over into how he talks about the Constitution and the Supreme Court rather than falling back into careful, hyper-technical law professor mode.

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By rooting the results he seeks from the judiciary in the words of the Constitution—by marrying method to results, rather than divorcing these concepts—Obama can mobilize progressives and also reach beyond his base in speaking about what's at stake at the Supreme Court. By meandering to the right on some of the most important provisions in the Bill of Rights while mumbling about appointing judges who rule based on their "own perspectives," he risks alienating both groups and weakening the Constitution right along with his political prospects.

Correction, July 14, 2008: The piece originally stated that the frieze above the entrance reads "Equal Justice for All." (Return to the corrected sentence.)

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Doug Kendall is founder and president of Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution's text and history. Dahlia Lithwick is a Slate senior editor.
Photograph of Barack Obama by Melissa Golden/Getty Images.
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