Fabulously Observant: Don't fear a McCain Supreme Court

It becomes clear that the dangers are more imagined than real.

By DAVID BENKOF
mccain and wife 224 ap (photo credit: AP [file])
mccain and wife 224 ap
(photo credit: AP [file])
I've spoken to a few centrist and liberal Democratic American Jews who like Sen. John McCain and would consider voting for him "if not for the Supreme Court." This fear is mostly unfounded. Voters who trust McCain's foreign policy experience, who think he's better on Israel or even who simply don't think Sen. Barack Obama is ready to be president can rest assured that one or two McCain appointees to the Supreme Court will not be able to unilaterally impose some kind of scary conservatism on the country. First of all, many presidential terms pass without a single Supreme Court appointment. Not a single justice died or retired during Jimmy Carter's sole term, Bill Clinton's second term or George W. Bush's first term. That's nearly 40 percent of the last several presidential terms. Further, nobody can be appointed to the court without Senate confirmation, and everyone expects the next Senate to include anywhere from four to eight additional Democrats. That means a far-right appointee is unlikely to be nominated, much less confirmed. THEN, LOOKING at the individual issues Democrats are concerned about, it becomes clear that the dangers are more imagined than real: • Abortion - I asked a Jewish pro-choice Democrat what would happen if Roe v. Wade were overturned, and she said, "The end of abortion as we know it." Certainly not! Roe v. Wade created a federal constitutional right to abortion. If it is overturned, each state will set its own abortion laws. That means for the majority of the population, the right to an abortion will remain solid. In some states, abortion will be limited in some ways - the ways that residents of that state find most offensive - like late-term abortions, for example. A few states, like South Dakota, may ban abortions altogether. The well-funded pro-choice movement (Planned Parenthood alone has an annual budget of more than $1 billion) will then have lots of options. It can lobby for and try to elect legislators who support abortion rights in states considering abortion restrictions. It can offer to transport women who say they need an abortion to a state where such a procedure is available. It can even try to amend the Constitution to guarantee abortion rights to all women. No matter what one thinks of abortion, it is not a good thing for the Supreme Court to declare that a right exists which is nowhere to be found in the text of the Constitution. I would be pleased on some level if the Supreme Court declared a federal constitutional right to medical marijuana and ferret ownership, because those issues are important to me. But I'd also be concerned that those subjects aren't mentioned anywhere in the Constitution, and if my personal issues can be federalized by a runaway court, what issues that I don't agree with are next? • Church and state - Many left-of-center Jewish voters are afraid of the erosion of the separation of church and state, most particularly when it comes to school prayer. As an Orthodox Jew, I would not be pleased to find Jewish schoolchildren invited to say a sectarian Christian prayer in public school. But Supreme Court rulings rarely implement completely new law out of thin air. Because of the principle of stare decisis (let the ruling stand), change is more incremental, with previous trends intensified or reined in. Recent precedents suggest that changes in church-state doctrine are likely to welcome not Christianity but rather a variety of religious traditions, or generic religious sentiments (think menorot next to Christmas trees on public land, or the daily prayer that starts the day in Congress). Besides, would generic school prayer really be so bad? Our public schools are breeding grounds for immorality - violence, cruelty, the drug culture. Perhaps the entire society would benefit if schoolchildren started their day with three to five minutes of reflection about morality and higher things. DavidBenkof@aol.com