By Greg Demers

As independent voters ready themselves for tomorrow’s election, they will inevitably flock to the websites of Barack Obama and John McCain to pin down the differences between the candidates and, hopefully, help solidify their decisions. While the vast majority of topics on these sites overlap, there is one issue that is strikingly absent from Barack Obama’s website: judicial philosophy.

Even the link titled “additional issues” makes no mention of the senator’s position on judicial activism and constitutional interpretation. In 2005, Obama went so far as to call judicial nominations “an enormous distraction.” Partisanship aside, the American people should know (and care) about the judicial philosophy of someone who might well be the next President of the United States.

At this point, you’re inevitably thinking to yourself: with an ongoing quagmire in Iraq, social security on the verge of collapse, healthcare costs skyrocketing out of control and the economy in the midst of an all-out meltdown, who cares about constitutional interpretation? The optimistic answer: everyone. The sad-but-true answer: a handful of law students and their professors. But even if you’re more concerned about filling your gas tank than whether Judge Janice Rogers Brown is a strict constructionist, it’s important to be aware of the potential implications that the election will have for the judicial branch because they may be more far-reaching than you think.

Obama’s lack of transparency on this issue is a bit frustrating, but the few comments he has made on the topic are downright scary. At a 2007 Planned Parenthood conference, Obama finally gave us a sense of his judicial philosophy: “We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.”

Really? It’s hard to believe a former president of the Harvard Law Review is going to appoint some of the most powerful people in the world based on whether they were knocked up as fifteen-year-olds and whether they are sexually aroused by people of the same gender. Perhaps Obama was simply placating his audience, but with so little evidence of his actual thoughts on the issue, it’s hard to ignore those words.

In many newspapers, I could probably end the article right here. But this is Ithaca. Undoubtedly, there are readers wondering: what’s wrong with the criteria he mentioned? First, we have to understand the significance of the decisions he will be making. Justice John Paul Stevens will turn eighty-nine in April, making it likely that the next president will have to fill at least one Supreme Court vacancy. There have also been rumors flying about Justice Ginsberg and Justice Souter considering retirement if Obama is elected in order to ensure Democratic successors.

It seems a bit ridiculous to expound on the significance of the United States Supreme Court, but given the disinterest of both the American public and the candidates themselves regarding this topic, I feel compelled to say a few words. Every year, the Supreme Court decides the most challenging and weighty legal issues facing our nation. Just this summer, the Supreme Court determined that the writ of habeas corpus extends to Guantanamo detainees and that the Second Amendment protects an individual’s right to bear arms. I understand that you’re probably neither an Iraqi insurgent nor Charlton Heston (even if he were alive, odds are he wouldn’t read The Sun) but the point is that the Supreme Court issues landmark decisions every year and the next president will play a crucial role in determining who makes those decisions.

So, what criteria should supersede the ones mentioned by Obama? How about experience and competence? Americans used to take for granted that the president would make these criteria a top priority until Bush nominated Harriet Miers, and now Obama is threatening to follow that trend, albeit from a slightly different angle.

What about the substantive legal questions: how does the nominee view past precedent? Will the nominee interpret the Constitution based on a literal reading, based on the framers’ original intent, or based on a belief that the Constitution is a “living document” that evolves over time? Does the nominee believe in strictly defined spheres of state and federal power? Does the nominee believe that a judge’s fundamental duty is to interpret the law rather than shape it according to his or her personal views?

These are critical questions that dictate how judges will decide the most difficult issues facing the judicial branch in the next four years. Even in the rather unlikely event that the Supreme Court remains intact for that period, the president will still be intimately involved in shaping the judiciary by appointing dozens of federal judges at the trial and appellate levels. We can only hope that the next president takes this responsibility seriously because treating it as an “enormous distraction” could have enormous repercussions for us all.

Greg Demers Law ’10 is a second-year student in the Law School and an Associate on the Cornell Law Review. Barely Legal appears alternate Mondays.