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Yesterday, I expressed frustration with Obama's criticism of the Supreme Court's decision to declare the death penalty unconstitutional as a punishment for child rape. Obama's position may be politically expedient, I argued, but it's wrong on the merits. Jeffrey Rosen, however, has a good catch from The Audacity of Hope suggesting that Obama's take is actually tethered to a fairly long-standing belief in the applicability of the death penalty to crimes beyond murder:
Obama's support for the execution of child rapists wasn't invented for the presidential election; it dates back to The Audacity of Hope, where he wrote: "While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes--mass murder, the rape and murder of a child--so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment."I still think Obama's wrong, but it doesn't seem to be the case that he became wrong just in time for this election. Rosen goes on to read a bit deeper into Obama's dissent and detects hints as to what type of Supreme Court justices a President Obama might favor:
What's most striking about his position on the case, however, is that it suggests a welcome suspicion of old-style Warren Court judicial activism. If the Court had "said we want to constrain the abilities of states ... to make sure that it's done in a careful and appropriate way, that would have been one thing," Obama noted. "But it basically had a blanket prohibition and I disagree with that decision." Given the fact that Obama has cited Earl Warren as a model for the kind of Supreme Court justices he would appoint, his criticism of Kennedy's opinion--which was too quick to detect a national consensus against the death penalty for child rape--is encouraging...[Obama] may be more of a judicial conservative than many people expected.There is a tension though. Unlike, say, Bill Richardson, who famously named the anti-Roe, relatively undistinguished Byron White as his favorite justice, Obama knows quite about the Court. He was a star law student and a constitutional law instructor. He presumably knows both quite a lot about the major justices and has a fairly textured take on how the Supreme Court should operate. It would be interesting to hear him talk through the tension between his respect for Warren and the judicial conservatism Rosen thinks he detects. As it is, I can't recall actually seeing an interview where Obama discussed his judicial philosophy in detail, but it seems like the sort of thing someone (Jeffrey Rosen?) should seek out.
