- - Wednesday, October 31, 2012


We are heading into the last days before the most momentous election in the 21st century, in which the voters in the United States are faced with a stark choice between two different visions for the country. One party thinks inequality is the major problem and a redistribution of resources by government is necessary, while the other thinks the government itself is the problem and the country will descend into economic turmoil if individual liberty is not put ahead of centralized rule. One party believes in disengaging to a greater extent from obligations around the world, while the other party maintains that it is the job of this country to furnish leadership for other people. Important as these matters of domestic policy and foreign affairs are, there is a third profound difference between the parties, which ought to be the most important of all for those of us who care about the Constitution.

This is the question of what kind of nominees the president ought to select for the nation’s courts in general and the U.S. Supreme Court in particular. At this curious moment in judicial history, there is a deep division on the court, a division that also is reflected in the two parties’ attitudes toward the judiciary.

Right now, four justices of the Supreme Court — Elena Kagan, Sonia Sotomayor, Stephen G. Breyer and Ruth Bader Ginsburg (all nominees of Democratic presidents) — appear committed to interpreting the Constitution in a manner that essentially would permit the federal government to do whatever it wants. Four other justices (Samuel Anthony Alito, Jr., Clarence Thomas, Anthony M. Kennedy and Antonin Scalia) understand the Constitution to represent a commitment to maintain the state and local governments (those closest to the people) as the most important promulgators of law. Chief Justice John G. Roberts Jr., if his vote on the Patient Protection and Affordable Care Act (Obamacare) case can be taken as a guide, moves uneasily between the two camps and seems ultimately less committed to the Constitution than he is to keeping the court out of politics.

In upholding the constitutionality of Obamacare, the chief justice chose to subordinate what should have been a commitment to the rule of law to his belief that the court could not afford another political conflagration like the one that accompanied its 2000 decision that, in effect, decided the presidential election for George W. Bush. The chief justice’s decision on Obamacare signaled that he perhaps was more of a pragmatist than a constitutional theorist, more of a temporizer than a true believer in the original understanding of the Constitution’s framers.

For those of us who still think it ought to be the task of the Supreme Court to preserve that original understanding, the judicial stakes of this election could not be higher. At least three justices of the court are advanced in years and could face retirement or disability within the next four years. If the next president is able to make three appointments to the court, it is very likely he will tip the balance of constitutional interpretation in one direction or the other for decades.

Nominees to the bench should be committed to a jurisprudence of original understanding, to the preservation of liberty and to a more modest role for the federal government. Those notions, I believe, are the genius of our Constitution and, indeed, of the rule of law itself. However, as too many “stealth” nominees have proved, a president must seek more than mere verbal commitments to those notions. It also is imperative that nominees possess a record demonstrating their willingness to adhere to the original understanding of the Constitution regardless of the political consequences.

I have been privileged to serve on Mitt Romney’s Justice Advisory Committee. I am convinced that he understands these things, and for the sake of the next generation of Americans, I hope he wins on Nov. 6.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and a professor of business law at Northwestern’s Kellogg School of Management.

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