Why I Will Support the Democratic Nominee Irrespective of Who Wins the Primary

"Towards thee I roll, thou all-destroying but unconquering whale. To the last, I grapple with thee; From Hell's heart, I spit at thee; For hate's sake, I spit my last breath at thee."


In the ninth century, as marauding Vikings drew near to her monastery, Aebbe the Younger, the Mother Superior, supposedly ordered her nuns to disfigure themselves, that the Norsemen would not think the nuns worth raping. The tactic met with some success, as the raiders chose to burn the building (and its inhabitants) instead. From this possibly apocryphal act, the church has Saint Aebbe, and English has "cutting off the nose to spite the face." Why the references to literature, history, and mythology (if they can be separated)?


Many supporters of both Clinton and Obama have stated that, in the event that their favored candidate loses the primary, they will not vote for the other candidate. Instead they will stay home, or in some particularly vitriolic instances, vote for McCain.


The former would be silly and petulant enough; the latter would simply be ridiculous. Obama and Clinton are, for most things that matter (or should matter) to liberals, the same package in different trappings. Those who can reasonably articulate an argument for why their candidate would make the better president tend to divide along Neustadt/LBJ lines. He seems genuine and persuasive; she supposedly has the wherewithal to navigate the corridors of power. But on issues of substance, in the hearts and minds of the two candidates, they are not fundamentally different.


If you don't believe me, please tell me what the actual (in other words, non-talking point) difference in outcomes will be between mandated and unmandated universal health insurance. So far, people who know far more about policy than I do don't seem able to come to any sort of consensus; I suspect that this has as much to do with the inherent uncertainty of the respective outcomes as it does anything else.


As far as Iraq goes, Clinton went from being rather open ended to (apparently) favoring withdrawal within sixty days. Obama has had a (rather loose) commitment to withdrawal since the beginning. Irrespective of which one wins, I seriously doubt that withdrawal will be as simple as either one suggests.


The one major policy difference that I see is in their beliefs about the role of diplomacy. Clinton seems to believe that countries ought not speak with their enemies (whatever that word means in an IR context), where Obama seems to believe that one does. I personally am strongly in favor of normalizing relations with Cuba (where the embargo is ridiculous for many reasons, not least of which because it deprives me of excellent cigars and rum) and Iran. I favor the latter because: 1) I am a foreign policy realist; you deal with what you have; 2) I think that normalized relations will have precisely the impact that our dysfunctional relations are supposed to have; 3) My Iranian-American friends tell me that young Iranians have an overwhelmingly favorable view of the United States that is tempered only when we humiliate Iran on the international stage.


There are the differences. Here is why, if Obama loses the primary, I would cry into my beer for a few days, then get over it and vote for Hillary in November:


In 2008, the ages of the Supreme Court justices are as follows. Scalia (71), Thomas (59), Alito (57), Roberts (53), Kennedy (71), Stevens (87), Ginsburg (74), Breyer (69), Souter (68).


It seems almost certain to me that Stevens will not be around in 2012. It is not difficult to imagine a scenario where Ginsburg, Kennedy, Scalia, and at least one of Breyer and Souter are not as well. Thus, the sitting president could quite conceivably replace five sitting justices. That is simply huge. No president since Eisenhower has nominated so many (the record for most appointed justices is held, and this should be a shocker, Washington, who appointed the original bench of what was then nine justices; he replaced one of them, giving him ten total nominations. the next most was the eight nominated by FDR, who was of course president for twelve years).


If a conservative Republican (i.e. McCain) becomes president, I think that it is reasonable to assume that he will nominate young, conservative justices in the mold of Alito. Obviously replacing Scalia with a conservative justice would be like replacing water with dihydrogen monoxide. However, replacing three of the four more or less liberal justices and the lone sort of moderate, swing vote justice with four true conservatives could have a far larger impact on this country than four more years of a Republican presidency.


When I say that, I am of course speaking at least in part about Roe, but I am by no means limiting my analysis to it. Roe was, by most accounts, a legally tenuous decision that mandated a course of action that was already beginning to occur democratically. Many legal historians have thus argued that Roe set back abortion rights (as well as progressive politics) by creating an unholy alliance between radical Christians and the opponents of a strong federal government (i.e. more traditional conservatives). Many also argue that overturning Roe would have the practical effect of forcing conservative politicians to put their money (or at least their votes) where their mouths are, and that this will weaken the Republican party, since the vast majority of Americans are in favor of at least some abortion rights.


I don't know if this argument is correct, but I do think that Roe should at the very least be reexamined. If it is such bad law, then it should be replaced by a decision that achieves the same outcome but does so through better legal analysis. That certainly will not happen if McCain appoints the next five justices; in that case, Roe will be completely overturned, and in the best case abortion will be left to the states. In the worst case, abortion will be completely outlawed, the wealthy and middle classes will fly their daughters to Europe, and the poor will either have children or back-alley abortions.


But leaving Roe aside, there are many other important issues that we are facing right now. We have already seen the Court uphold de facto school segregation. This seemed to me to be a decision that was as legally tenuous and hair-splitting as Roe, but I think that the decision was reached as part of a conscious effort to roll back many of the decisions of the 195os and 1960s.


The "Global War on Terrorism" has certainly also created its share of issues, and this Supreme Court has had sort of mixed opinions on just how substantial a president's powers are in times of conflict (notice I did not say war, although Bush has tried his hardest to claim this by fiat). In play: Are warrantless wireless searches reasonable? Whom does habeus corpus apply to? Does the Constitution follow the flag? This just scratches the surface; create a court with enough proponents of the unitary executive and the questions will be academic, since the executive will subsume the roles of the judiciary and legislative branches. Frightened yet? You should be.


So these are the real stakes of this election. In my opinion, the legal landscape of at least the next twenty years will be determined by its outcome; if the Court takes as active a role as the Rehnquist court did in Bush v. Gore, then the impact that this election has might create judicial and political consequences that are even more far-reaching, and that is why I would vote for Clinton if I had to.