A Second Obama Term and the Supreme Court

Pete Spiliakos has some thoughts on really the most important reason why Obama should be defeated in the upcoming election:  keeping the current balance of the Supreme Court intact.  Here is Pete:

So what would it mean to have a Supreme Court where Stephen Breyer was the ideologically median Justice?  Off the top of my head I’m guessing that HELLER and MCDONALD V. CHICAGO would likely be reversed.  Obama’s first Supreme Court nominee (Sonia Sotomayor) voted against incorporating the Second Amendment against the states.  I don’t expect Kagan to vote any different if the issue came up.  Obama doesn’t talk much about gun control, but he is one Supreme Court pick (if it is for any of the five not-consistently-liberal seats) away from a Supreme Court ”collective right” interpretation of the Constitution.  One more liberal Supreme Court Justice also means that overturning (or even the eroding) of ROE is much more difficult and lengthy.  It also means a more radicalized abortion jurisprudence.  Say goodbye to the federal (and any attempted state) prohibitions on partial birth abortion.

This is really scary to think about.

As Pete notes, Anthony Kennedy is 75 and Antonin Scalia is 76, which means if Obama wins another term, either one or both could step down in the next four years. (Ginsburg would more than likely also step down, but it would be less damaging the current makeup of the Court.)  

How Romney should talk about the Supreme Court while on the campaign trail:

As a political matter, Romney would do well to hit, with specificity, on the policy implications of an Obama Supreme Court.  If he can frame the issue as an Obama reelection meaning a) the end of constitutional Second Amendment protections, b) the return of partial birth abortion and c) a Commerce Clause interpretation in which Congress can force anyone to contract with  a private company to buy a product they don’t want, then Romney has a strong case that he can take to both conservatives who might be leery of him and to swing voters who are leery of judicial liberalism (to the extent they are reminded what judicial liberalism means in practice.) 

Talking this way would appeal not only to conservatives:  it would appeal to unaffiliated voters, independent voters, and even a certain number of Democrats who carry a concealed carry license and don't much like the prospects of returning to the days of partial birth abortions.  

Also (sorry for too much praise), Pete is right that conservatives should treat anyone Romney may nominate with considerable unease.  It is interesting to note the difference in the outcry from Right, or lack thereof, when George H.W. Bush nominated the unknown David Souter and when his son nominated Harriet Miers.