This being an election year, the ink was not dry on the opinion in Kennedy v. Louisiana before bloggers (and blog commenters) were asking how it would affect the presidential election and whether it would give a boost to John McCain. Without missing a beat, Barack Obama has criticized the opinion. What does it say about the Court's finding of a national consensus if the de facto presidential nominees of both major political parties disagree with the supposed consensus?
Obama is dancing the election two-step, of course. Swing to the sideline to win your party's nomination, then swing back to the center to win the general election. He has irked some activists that way, reports Susan Davis in the WSJ, but I doubt that irking will cost him anything. Anyone with sense knows that he is still their man. Even while nominally supporting the death penalty, he says things like, "While the evidence tells me that the death penalty does little to deter crime...." Only someone who listens exclusively to anti-death-penalty propaganda could make a statement like that. Any honest review of the literature shows a heavy preponderance favoring deterrence, and the only question is whether the deterrence hypothesis has or has not been proven sufficiently to base policy on it. If elected, I expect that President Obama will block enforcement of the death penalty with judicial appointments, with rolling back federal habeas corpus reforms, and with refusal to implement the 2005 amendments to AEDPA.
Wait a minute. Did I write "anyone with sense" while referring to the MoveOn.org types? Never mind [Gilda Radner impression here].