Bad Judgment

My desire to offer some post-election commentary has been thwarted by bad timing. My submission deadline falls just before the Nov. 2 voting. Possessing neither crystal ball nor much confidence in pre-election polling data, I will have to settle for something other than detailed analysis of the mid-term election results. I will take the long view regarding a perennial concern within U.S. politics.

One of the most closely watched Senate races this season unfolded in Delaware. The Democrats nominated New Castle County Executive Chris Coons (full disclosure: I was once on a college debating team with him). His Republican opponent was the Tea Party-supported consultant Christine O’Donnell. Luckily, the campaign soon moved on past O’Donnell’s dabbling in witchcraft to more substantial topics.

For those outside Delaware, the primary opportunity to assess the candidates was the CNN broadcast of a debate on Oct. 13 (interrupted, to the dismay of few, by breaking news of the rescue of 33 Chilean miners).

As surely as Nascar enthusiasts secretly yearn for multi-car pileups, people watch candidates’ debates to gawk at gaffes. After this debate the moderator, Wolf Blitzer, opined that O’Donnell must be judged the winner simply because she made no major missteps, a solid accomplishment for a less experienced candidate like her.

I strongly disagree with Blitzer’s assessment. The candidate in fact made an egregious gaffe. When asked to name a recent Supreme Court decision with which she disagreed, O’Donnell inexplicably drew a complete blank. Obviously flustered, she promised to post on her Web site right away her answer to that question.

Now we all live in dread of being flummoxed by “gotcha” questions like this. I have been there myself, unable to recall a single title of a favorite novel when a live radio interviewer was making small talk with me on air some years ago. I even tell my students facing job interviews to keep on the tip of the tongue answers to casual questions like “Who is your favorite theologian?” or “What is the best Catholic weekly magazine in the United States?”

By the time you read this, Christine O’Donnell is either a Senator-elect or is looking for work. I nevertheless wish to offer her some advice on this aspect of campaign debate preparation.

If you favor a broad interpretation of the word recent, then consider citing Plessy v. Ferguson, the 1896 case that cemented the principle of “separate but equal” into U.S. law for generations. Or go with Roe v. Wade, the horrific 1973 decision that allowed legal abortion in all states. O’Donnell’s public record attests to her opposition to that Supreme Court blunder.

If the word recent means only this year, there are still many decisions from which to choose. I would identify two that are particularly objectionable. In January the court reached a much criticized decision in the case Citizens United v. Federal Election Commission, which overturned many previous restraints on political advertisements. This raises fears that corporations and special-interest groups can bankroll a range of political activities with little regulation or transparency. Foreign donors seeking to influence American politics are freer than ever to engage in stealth spending.

The other disastrous ruling was in the case Holder v. Humanitarian Law Project. That decision, on June 21, defined all contact with any of the hundreds of groups classified by the State Department as terrorist organizations as constituting material support for enemies of the United States. Main-taining such a broad interpretation of material support precludes constructive initiatives like the creative Track II diplomacy, which has led to peace settlements in Northern Ireland and elsewhere.

While both decisions cite lofty principles (free speech, national security), I predict that the effects of these two rulings will be intolerable. While people of good will might well disagree, I am convinced that each will seriously damage the common good.

Supreme Court decisions have a way of trumping electoral politics and reshaping the structure of the entire political system. A bad ruling may tilt the playing field in ways antithetical to democracy. Every candidate should be poised to identify and oppose decisions with harmful effects that will last long beyond a given election cycle.

This article appears in November 15 2010.