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Ceding The Constitution

Amidst the left's Great McCain Bounce Panic come some genuinely distressing polling numbers, courtesy of Rasmussen via Orin Kerr:

While 82% of voters who support McCain believe [Supreme Court] justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

Of course there are the usual caveats about interpreting delicately worded polling prompts like this one, which dramatically oversimplifies a complicated set of questions about what exactly it is that courts do. Still, this reflects very poorly on Democrats. Less than a third of Obama voters are willing to sign on to a fundamental tenet of American government that you learn in elementary school civics class, and half think that judges should just make it all up as they go along. (After a full five days of law school, I find this quite disturbing--have Obama's supporters no shame about admitting this to a pollster!?)

Now, since it seems unlikely that many Americans spend much time weighing the relative merits of different methods of judicial decisionmaking, it's a fairly safe bet that voters are largely reflecting the rhetoric they hear from political elites: Republicans talk about enforcing the law, while Democrats talk about fairness. Not only does this put liberals at a huge rhetorical disadvantage, but it makes Democratic voters look stupid when they parrot that rhetoric back to pollsters. All the more reason for prominent Democratic politicians to start making an affirmative case that conservative jurisprudence is actually wrong, not just that it sometimes leads to undesirable outcomes. And if liberals can't make that case, they should get out of Justice Thomas's way, take their marbles, and go home.

--Josh Patashnik