One of the crucial issues in this presidential election has been debated mostly in encrypted exchanges. That issue is the future of the American judiciary, and above all the Supreme Court.
McCain and Obama know that their impact on the most unchanging branch of government could be enormous, but the Republican nominee-to-be is on the offensive, while the Democrat can only hope to hold his ground.
The balance of the Supreme Court has long been held by one key justice, flanked by four who generally favor liberal causes and four who consistently support conservative ones. And currently, the three justices most ripe for replacement are all on the liberal wing.
John Paul Stevens seems healthy, but he'll be 92 before the end of the next presidential term; Ruth Bader Ginsburg will be 79. David Souter is only the sixth-eldest of the bunch, but it is hard to tell when he may retire. Meanwhile, Souter's three juniors are all members of the Court's near-lockstep conservative bloc.
Hence the importance of the coded messages that the two presidential contenders have been lobbing since early in their campaigns. When speaking to the staunch conservatives whose support he needs to secure, McCain promises that his judicial appointments will aim at doing away with the "airy constructs" that have subverted the right wing's vision for American society - principally by justifying judicially mandated access to birth control and abortion.
Addressing the opposite side of the political spectrum, Obama has pledged that his judicial appointees will be people with "empathy" - those who can put themselves in the shoes of women and minorities to challenge recent rulings on abortion, workplace discrimination and public school integration.
On this front, an Obama victory will bring very little change. If Stevens, Ginsburg or Souter leave, you can expect their replacements to be roughly as liberal - no more so than ACLU paladin Ginsburg and no less so than Ford appointee Stevens.
Not so if McCain is elected. His nominees, as he has surreptitiously promised, are likely to be conservative radicals who will shift the Court's stance firmly to the right. With Democratic gains expected in the Senate, their confirmation fights may be bruising, but they could potentially slip past with the tight-lipped approach that worked for President Bush's nominees three years ago.
Of course, to the average American voter, the candidates' opaque declarations about judicial philosophy won't sound like much of a contrast. Why should empathy and concrete jurisprudence be at odds?
And, as usual, the common-sense approach is correct. The vast majority of precedents, legal statutes and Constitutional provisions are best interpreted through strict, concrete analysis that adheres to the letter of the law regardless of the judge's personal convictions.
This is the best way to ensure that Americans know and respect the law, and it checks the power of the least accountable branch. To fulfill their role in society, judges and justices need the courage to honor legislation they wouldn't have voted for, and the modesty to tweak precedent rather than overrule it (except in the most extreme circumstances).
But that's not all there is to it. Certain legal passages expressly call upon the judiciary to apply nebulous standards and uphold unenumerated protections - and thus to adapt to the changing standards of American society.
The most salient example is the Ninth Amendment, which reminds us that the specification of particular rights "shall not be construed to deny or disparage others retained by the people."
This amendment formed the basis for the "right to privacy" that decriminalized abortion and later sodomy throughout the United States, and it has been the focus of right-wing ire ever since. There is simply no way to interpret its words concretely save by ignoring them - which has been the approach of many conservative justices supposedly committed to the intentions of the Framers and the text of their masterwork.
Unquestionably, the two candidates have run afoul of the former principle. They both denounce rulings decided on the basis of the plain word of the law - McCain because they don't kowtow to the president, Obama because they don't err in favor of the more downtrodden party before the Court. And, like any politician, neither candidate has much regard for legal precedent: If a ruling suits their ideology, they want it upheld; if it doesn't, they want it to disappear without a trace.
But McCain's promises also run counter to the latter principle. Assailing the necessary practice of flexible interpretation puts provisions like the Ninth Amendment in danger of repeal by fiat.
That's not our only clue as to which candidate will maintain a more robust judicial framework. It's McCain who will have the most cause to appoint fringe judges and justices - not only to please social conservatives, but to safeguard the radical expansion of executive power to which he has committed himself during the Bush years.
This is an affliction that his opponent doesn't have. The left wing might breath fire over Obama's recent string of flip-flops - some real, most imagined - but they can be expected to fall in line after enduring eight years of conservative rule. Ultimately, Obama is a modest liberal, and the same has been true of the great majority of history's most celebrated justices.
William Martin '10 has always been a steadfast defender of our Third Amendment rights.
