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In Support Of Obama's Death Penalty Stand

Many liberals may be inclined to view Barack Obama's criticism of the Supreme Court decision banning execution of child rapists as the worst kind of poll driven pandering--akin to Bill Clinton's decision to fly home to Arkansas during the 1992 election to permit the execution of the mentally handicapped Ricky Ray Rector. I disagree. In fact, Obama's support for the execution of child rapists wasn't invented for the presidential election; it dates back to The Audacity of Hope, where he wrote: "While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes--mass murder, the rape and murder of a child--so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment." His longstanding opinion on the death penalty is a particularly nuanced one. He has opposed expanding the death penalty to include gang activity, for example, on the grounds that it would disproportionately punish men of color, but he supports the execution of especially egregious murderers who are clearly guilty.

What's most striking about his position on the case, however, is that it suggests a welcome suspicion of old-style Warren Court judicial activism. If the Court had "said we want to constrain the abilities of states ... to make sure that it's done in a careful and appropriate way, that would have been one thing," Obama noted. "But it basically had a blanket prohibition and I disagree with that decision." Given the fact that Obama has cited Earl Warren as a model for the kind of Supreme Court justices he would appoint, his criticism of Kennedy's opinion--which was too quick to detect a national consensus against the death penalty for child rape--is encouraging.

Obama's attempt to parse today's gun rights decision--suggesting that Justice Scalia agreed with his position that gun ownership is an individual right but that it can be subject to reasonable limitations--was more of a stretch. (His campaign is backpedaling away from his "inartful" statement last year that "Obama believes the DC handgun ban is constitutional.") But even that was less of a flip-flop than it was an attempt to read the Court's decision as narrowly as possible--a lawerly move that, like Obama's statement on the child rape case, suggests he may be more of a judicial conservative than many people expected.

--Jeffrey Rosen