Monday, October 6, 2008


I never thought I could vote for a man, Barack Obama, who, in Illinois, repeatedly voted to deny continued life to babies born after a botched abortion. However, my religion is the Constitution and when I pull the lever, it will be for Joe Biden. John McCain is admirable in many ways, and back in May, I suggested he choose Sarah Palin as his running mate. But neither is capable, as world terrorism goes on, of restoring our Constitution.

Neither is Mr. Obama. During the early stages of his campaign, there were wispy indications he had learned something while teaching constitutional law at the University of Chicago. But over time, and on his well-worn teleprompter, his principles have proved watery. As former Bush speechwriter Michael Gerson wrote in The Washington Post (Aug. 18): “Obama is one of those rare political figures who seems to grow smaller the closer we approach him.” In pulling the lever for him, I am actually voting for the vice president on the ticket, Mr. Biden. As I’ve written in this column several times, Mr. Biden is a deeply informed and passionate protector of the source of our liberties and our responsibility to guard and keep them.

During the course of his failed campaign for the presidency, Mr. Biden detailed how Mr. Bush’s disregard for the separation of powers “has undermined the basic civil liberties of American citizens. The terrorists win when we abandon our civil liberties.” I have not heard so insistent a ringing of the liberty bell from Messrs. Obama, McCain or Mrs. Palin.

I am far from alone in believing that the extent and the depth of what the Bush administration has done to the Constitution and to our standing in the world (very much including our allies) will remain unless and until enough Americans understand how much harm has been done.

A patriotic new administration can start revealing the damage and begin the repair work. And the next president’s nominations for Supreme Court vacancies could prevent the current Roberts-Alito Supreme Court from blocking the return of the separation of powers and the Bill of Rights.

Mr. McCain has assured us that his models for nominations for new Supreme Court justices will be John Roberts and Samuel Alito. Mr. Obama opposed the confirmation of both and has been critical of a number of their subsequent High Court opinions. As for Mrs. Palin, her manifest virtues do not - as her record indicates - include a strong interest in individual constitutional liberties. She has mockingly referred to Mr. Biden’s support of the due process rights of detainees: “He’s worried,” Mrs. Palin said, “that someone won’t read them their rights.” If Mr. McCain wins, Mrs. Palin will be next in line to select Supreme Court justices.

The head of her campaign, Mr. McCain, characterized the Supreme Court’s validating the habeas corpus rights of detainees at Guantanamo Bay in the Boumediene v. Bush decision as “one of the worst decisions in the history of this country.” I expect neither Mr. McCain nor Mrs. Palin recognizes why habeas corpus, embedded in the Constitution, is called “the Great Writ.” As for the effect of vice president Biden on future Supreme Court nominations, The New York Times (Sept. 12) reported that on a Fort Myers, Fla., campaign stop, Mr. Biden referred to the “Biden administration” before immediately correcting himself to say the “Obama-Biden administration.” He then added, laughing, “Believe me, that wasn’t a Freudian slip.”

Well, both by temperament and experience, Mr. Biden will not be a passive vice president in an Obama administration. And Mr. Obama will have to rely on Mr. Biden’s long and deserved reputation as a frontline expert on foreign affairs. With regard to Supreme Court choices, Mr. Biden has also had extensive direct experience participating in sometimes-stormy Senate confirmation hearings.

On Aug. 26, in Denver, Mr. Biden said (Legal Times, Sept. 8), “The single most significant thing that Barack Obama will do, and I hope I’ll be able to help him, will be to determine who the next members of the Supreme Court are going to be.” Since Mr. Obama does not agree with Mr. McCain about the stature of Justices Roberts and Alito, and has high regard for former Chief Justice Earl Warren’s accomplishments on the Court, a President Obama is very likely to pay considerable attention to his vice president’s view on potential Supreme Court justices.

And, as I’ve written during the presidential primaries and after, it was Mr. Biden who, unsuccessfully introduced the National Security with Justice Act of 2007, that would have among other restorations of our American rule of law ended CIA kidnappings (“Extraordinary renditions”) and abolished CIA secret prisons.

Mr. Biden is indeed prone to gaffes, but he can be eloquent. And as vice president, he could act on Thomas Jefferson’s counsel that “the most effectual means of preventing the perversion of power into tyranny are to illuminate the minds of the people.” I expect that as vice president, Mr. Biden could bring the Constitution back into Americans’ conversation, not just on Constitution Day.

Nat Hentoff’s column for The Washington Times appears on Mondays.

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