“We are in a long and difficult fight,” Sessions told the gathering of leading conservative lawyers, judges and law professors from around the country. Sessions was referring to the importance of expanding conservatives’ influence on the federal judiciary, and rejecting President Obama’s interest in appointing judges with “empathy,” a factor the president said influenced his choice of Justice Sonia Sotomayor. Sessions reportedly said that conservatives must keep debating the appropriate role of judges and “must take the debate right to the American people.”

The three-day Federalist Society convention is taking place at Washington, D.C.’s Renaissance Mayflower Hotel. U.S. Supreme Court Justice Samuel Alito and Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit are among the scheduled speakers.

In his speech, Sessions said Republicans would not attempt to filibuster most of President Obama’s choices for the bench, although he didn’t rule out filibustering some of them.

He singled out Judge David Hamilton, a nominee to the Seventh Circuit Court of Appeals, as a judge who’s too liberal on matters such as abortion, prayer in public school and criminal sentencing. Sessions similarly criticized Hamilton in a recent letter sent to his Republican colleagues in the Senate. The letter, which called for Republicans to oppose his elevation to the court of appeals, said Hamilton was using his role on the district court to “drive a political agenda” and that Hamilton believed “empathy” should factor into the process of judging, which Sessions called a form of “activism.”

On Tuesday afternoon, Jack MacIntyre, a deputy chief with the sheriff’s office, told me the ruling was “an instance of pretty rank judicial activism,” adding that “it is very very likely we will appeal.”

The way the sheriff’s office looks at it, he said, the judge’s order (which was read to the court and is not yet available in print) was “not only not leveling the playing field for persons seeking abortion, but setting them up as a preferential category ahead of anyone else seeking transport for medical procedures.”

That’s because Maricopa County doesn’t provide free transportation for anyone who wants medical assistance outside the prison clinic, he said.

“We’re continuing to charge anyone else for medical transports,” he said. “We did that recently for someone from Oklahoma who had to be tested and have bone marrow drawn because his sister had an advanced case of leukemia. He had to be tested twice and have bone marrow extracted and implanted in his sister. We charged in advance for transport and security costs,” said MacIntyre. “We do the same thing for people getting eyeglasses or dentures.”

In fact, the county is required to provide transportation for all medically necessary treatments, because prisoners have a constitutional right to medical care. But there’s no right to cosmetic dentistry or other elective procedures, so the county can charge pre-payment for transportation to those.

The ACLU had challenged the charges in connection with the abortion procedures because there is a constitutional right to abortion. The same court had already held that the sheriff cannot obstruct that right.

“The crux of the case was that for indigent women who couldn’t afford this, and couldn’t get money from friends, or from charitable organizations, she would likely be forced to carry to term,”explained ACLU attorney Brigitte Amiri, who argued the case in Arizona today. “The defendants conceded that.”

But MacIntyre had another objection, which is that there was no actual woman involved in this case, at least not right now. When the ACLU initially filed its lawsuit in 2004, it was on behalf of a woman who’d been denied access to an abortion because she could not afford the transportation and security costs. A nonprofit organization eventually paid the costs for her, but the issue remained and the case continued.

In 2005, the court ruled that the county policy was unconstitutional, and issued an injunction to prevent the county from enforcing it against anyone else. According to Amiri, the judge today ruled that the pre-payment policy was a violation of that earlier court order. Under Arizona law, it didn’t matter whether an actual woman was being denied the ability to obtain an abortion at this moment, she said. What’s more, “since this issue is certain to recur there’s no sense in not deciding it now. Also, when a woman does need an abortion, time will be of the essence, and any delay in obtaining an abortion can increase risks to her health.”

The judge apparently agreed that that was good enough reason to rule on the issue. But that still didn’t convince the Maricopa County Sheriff’s Office.

“It really is setting up one group as a special group, and it directly impacts the taxpayers who Arpaio tries to steward as best as possible by not spending their money foolishly, trying as much as possible to run his organization on as tight a budget as possible,” said MacIntyre.

What’s more, if the woman who initially was denied an abortion because she couldn’t afford it, back in 2004, were in the court today, he added “we wouldn’t even be discussing it,” said Macintyre. “That person was an illegal alien, and there’s a federal law that prevents us from extending credit to an illegal alien.”

Actually, says Amiri, the federal statute prevents illegal immigrants from receiving welfare benefits. And transportation to gain access to a constitutionally protected abortion is not legally considered a form of welfare benefits.

Supreme Court (WDCpix)

In announcing on Wednesday that it would review a case that asks whether individuals have a fundamental right to bear arms under the U.S. Constitution, the Supreme Court did more than just step into a heated debate over gun control. Although McDonald v. City of Chicago is on its face about Chicago’s ban on handguns, legal experts say it also raises a far broader question of constitutional interpretation that bears on how and whether the Constitution protects a wide range of rights from state infringement. A finding that the Second Amendment protects individuals’ right to own a gun could therefore have the unexpected outcome of also providing more solid ground for recognition of the right to abortion, to sexual privacy, to gay marriage, and to a wide variety of other rights that conservative justices on the court and “originalist” constitutional scholars have long opposed.

The issue in the Chicago case, as defined in the petition to the court, is “[w]hether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

Illustration by: Matt Mahurin

The court’s decision to take the case and consider whether the Second Amendment might be “incorporated” – applicable to the states – by the “privileges or immunities clause” of the Fourteenth Amendment suggests that the court is open to reconsidering a long line of cases dating back to 1873 that read that clause narrowly and thereby restricted the ability of the Fourteenth Amendment to protect fundamental rights. Although the Supreme Court has acknowledged many rights under the Fourteenth Amendment since then, it has done so based on the more tenuous argument that they’re protected by the more limited “due process” clause, which says that the State shall not “deprive any person of life, liberty, or property, without due process of law”. Lawyers and judges have at times resorted to complicated legal gymnastics to make the argument that a newly-recognized right falls under “substantive due process.”

That argument has left those rights vulnerable to an increasingly aggressive attack by conservatives who claim judges are engaging in “judicial activism” by recognizing rights not specifically enumerated in the Constitution. The “privileges and immunities clause”, which states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” has the potential to be read much more broadly.

The Privileges or Immunities Clause “was written to forbid state and local governments from trampling on the substantive fundamental rights of all Americans, thus securing the ‘unalienable rights’ to which the Declaration referred,” argues David Gans, Director of the Constitutional Accountability Center’s Human Rights, Civil Rights & Citizenship Program in a post at Balkinization.

Scholars from across the political spectrum appear to agree with him, and many joined in a brief submitted to the court in this case urging the justices to reverse the court’s longstanding precedent. In a “friend-of-the-court” brief drafted by the Constitutional Accountability Center, six constitutional law professors urged the Supreme Court to review the Chicago case and restore the original meaning of the Fourteenth Amendment, as protecting all “privileges and immunities” not enumerated in the Constitution.

“In discussing the fundamental rights of citizenship, the framers regularly included a long list of fundamental rights – such as the right of access to the courts, the right to freedom of movement, the right to bodily integrity, and the right to have a family and direct the upbringing of one’s children – that have no obvious textual basis in the Bill of Rights,” says the brief. “These were core rights of personal liberty and personal security that belong to ‘citizens of all free governments;’ it did not matter that they were not enumerated elsewhere in the Constitution.”

The libertarian Cato Institute and Institute for Justice similarly wrote in an amicus brief to the court: “the issue of the Second Amendment’s ‘incorporation’ implicates not only the right to keep and bear arms – important enough by itself – but the larger debate over the origin, nature, and extent of all our natural rights and how the Constitution protects them.”

While the language of the privileges and immunities clause seems clear, shortly after its adoption, in 1873, in a set of cases known as the Slaughterhouse Cases (affirming Louisiana’s right to regulate slaughterhouses), the Supreme Court narrowly read the Fourteenth Amendment to protect only “privileges or immunities” conferred by federal citizenship, not by state citizenship. It specifically did not limit the state’s police powers, the court ruled. The effect of that ruling was to gut the “privileges or immunities” clause, scholars have argued, and it’s led to serious questions and confusion over when and how states can regulate rights that are thought to be fundamental but are neither specifically conferred by the federal government nor mentioned in the constitution — often called “unenumerated” rights.

Whether the constitution protects such unenumerated rights remains one of the most hotly-debated matters of constitutional interpretation, and has sharply divided the conservative and liberal wings on the court. Justice Antonin Scalia, for example, has long criticized the notion that rights such as the right to an abortion or to privacy deserves protection by the U.S. Constitution. Although the Supreme Court has recognized some of these rights, based on its interpretation of the “due process clause” of the 14th Amendment, those cases have been increasingly attacked by the conservative members of the court, and by conservative scholars, as not being grounded in the original text of the Constitution.

“You have this assault on Roe [v. Wade] from the Right, claims of judicial activism from the right, saying judges shouldn’t be doing this,” explained Doug Kendall, President of the Constitutional Accountability Center. “There’s been an aggressive assault on the entire idea that there is incorporation and that judges should have a role in protecting liberties,” said Kendall, who organized the law professors’ submission of their amicus brief. “That’s fueled the conservative rise over the last 30 years in the courts.” In response, “there’s been a flowering of scholarship that goes back to the original debates and makes an overwhelming, compelling case for the proposition that the privileges or immunities clause was intended to protect a robust set of human and civil rights.”

Constitutional scholars ranging from Akhil Reed Amar, a liberal law professor at Yale Law School, to Randy Barnett, a conservative libertarian at Georgetown University Law School, have argued in books and articles that the “privileges or immunities clause” means what it says – that the states cannot infringe on a broad range of unenumerated civil rights of citizens. As the constitutional law professors write in their brief to the Supreme Court, “the Slaughterhouse cases read the Privileges or Immunities clause so narrowly as to essentially read it out of the Amendment,” but as Amar wrote in a 2001 Yale Law Review article the brief cites: “[v]irtually no serious modern scholar – left, right and center – thinks that this is a plausible reading of the Amendment.”

Of course, if the court does decide to breathe new life into the privileges or immunities clause, it will ignite a new debate about what those rights are. But their defenders argue those rights are vast. The Ninth Amendment specifically says that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The privileges and immunities clause of the 14th Amendment, the constitutional scholars argue in their brief, “is the textual hook in the Fourteenth Amendment for protection of unenumerated fundamental rights, as well those substantive fundamental rights articulated in the Bill of Rights, including the Second Amendment right to keep and bear arms.”

The law professors quote the 1866 report of the Joint Committee on Reconstruction, which interpreted the Privileges or Immunities Clause to “afford broad protections to substantive liberty, encompassing all ‘fundamental’ rights enjoyed by ‘citizens of all free Governments’: ‘protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole.’“

Because the Fourteenth Amendment was focused on giving newly freed slaves the rights of citizens, says Kendall, it focused on protecting “the rights of heart and home. Your ability to control your family, your children’s education, reproductive choice and sexual intimacy.”

Not that everyone agrees with that view. A group of legal historians, for instance, filed a brief with the Seventh Circuit Court of Appeals in the McDonald case arguing that Congress’s intent in passing the Fourteenth Amendment was unclear. But until now, the Supreme Court has never agreed to hear a case that directly raised this issue.

Even if the court wants to find that the Second Amendment’s right to bear arms applies to the states, it might still sidestep the broader issue raised by this case and avoid overturning more than a hundred years’ worth of precedent. Liberals have invoked the due process clause of the Fourteenth Amendment to argue for other fundamental rights, and the court could find the right to bear arms is similarly protected by the due process clause, rather than by the privileges and immunities clause. But even that would be a victory of sort for progressives, Kendall said.

“It would force Justice Scalia to utilize substantive due process” — an idea he has long criticized in the context of abortion and other controversial rights –  “to achieve the results he wants in the guns case,” said Kendall. “As long as the court finds incorporation” — that the Bill of Rights applies against the states — “it will provide a basis for undercutting Justice Scalia’s argument against it.”

For some conservatives, then, winning the right to carry a gun could turn out to by a Pyrrhic victory.

Still, it’s not completely clear if he’s warning conservatives or liberals.

In an op-ed in USA Today, he writes that “supporters of liberal judicial philosophy might find [Sotomayor's confirmation] a Pyrrhic victory,” adding that “during three days of careful questioning, Judge Sotomayor renounced the pillars of activist thinking.”

So liberals may be disappointed.

But they’re not the only ones, warns Sessions. “Pledging ‘fidelity to the law’ and practicing judicial restraint are different things,” he writes. “Which Sotomayor will we get?”

Sessions cites Sotomayor’s decisions in three cases that Republicans hammered her on during the confirmation hearings: a property rights case case that allowed the government to take property from one developer and give it to another; her Ricci decision rejecting white firefighters’ claims of race discrimination; and her decision this year finding that the Second Amendment does not provide a “fundamental right” enforceable against the states. Sessions says that “each was contrary to the Constitution.”

Those decisions, and not the statements at her confirmation hearing, show her true colors, he argues.

“I don’t believe that Judge Sotomayor has the deep-rooted convictions necessary to resist the siren call of judicial activism. She has evoked its mantra too often. As someone who cares deeply about our great heritage of law, I must withhold my consent.”

“I’m deeply concerned by your assertion that the law is uncertain,” said Coburn. “We want justice to be predictable. I’m worried that our Constitution may be seen to be malleable and evolving whereas I, as someone who comes from the heartland, believe, as do the people I represent in Oklahoma, that there is a foundational document and statutes and treaties that should be the rule rather than our opinions.”

Sotomayor’s statements that there exist “a series of perspectives” and that neutrality “will not allow escape from choice and judging” are disturbing, Coburn said.

“That implies that the law is not objective but subjective. Then all rulings are subjective and we lose the glue that binds us together.”

Of course, Coburn’s ideal of perfect predictability in the law that allows an escape from judgment and perspective would obviate the need for a Supreme Court — and today’s confirmation hearing.

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Here’s Whitehouse, in one of his characteristically articulate speeches:

The “umpire” analogy is belied by Chief Justice Roberts, though he cast himself as an “umpire” during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that “[i]n every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” Some umpire. And is it a coincidence that this pattern, to continue Toobin’s quote, “has served the interests, and reflected the values of the contemporary Republican party”? Some coincidence.

For all the talk of “modesty” and “restraint,” the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman’s health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Over and over, news reporting discusses “fundamental changes in the law” wrought by the Roberts Court’s right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito.

Some “balls and strikes.”

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Notwithstanding her much-decried “wise Latina woman” claim, it turns out Sotomayor is no liberal activist hell-bent on replacing the Constitution’s equal protection clause with a new section mandating affirmative action, as some of the Republican criticism would suggest.

Instead, CRS reports, via Secrecy News: “Perhaps the most consistent characteristic of Judge Sotomayor’s approach as an appellate judge has been an adherence to the doctrine of stare decisis, i.e., the upholding of past judicial precedents.”

According to the nonpartisan research service, Sotomayor’s other prominent characteristics include “a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as oversteping its judicial role.”

Hardly a judge who plans “to use her seat on the Supreme Court to advance liberal policy preferences,” as former Attorney General Ed Meese, who’s helping direct her critics, has suggested.

Although that may be because the panel did not issue a long written opinion (which Adam Liptak at The New York Times has reported was because the judges couldn’t all agree on one), opting instead to adopt the reasoning of the district court, Armando Llorens, AKA Big Tent Democrat at TalkLeft, actually bothered to read the concurring opinions among the Second Circuit justices that decided, by a majority vote, not to re-hear the Ricci case after the panel’s ruling.

Llorens finds that in fact, the panel (including Sotomayor) was being extremely conservative (as a matter of judicial philosophy, not politics) in briefly affirming the lower court’s decision. He looks to the reasoning of Calabresi, who pointed out that the white firefighters who claimed to have been denied promotions due to race discrimination failed to make the necessary legal argument supporting that claim in the court below:

In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives.

Cabranes, who conservatives have cited as “chastising” Sotomayor in urging the full Second Circuit court to re-hear the case, thought that the court should have considered whether New Haven had these “mixed motives,” which might have violated the civil rights law. But for the Second Circuit to have undertaken that analysis on its own, when the district court did not, would have been inappropriate — and activist. As Calabresi explained in his concurrence:

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

The emphasis above is supplied by Llorens, who seems to be the only one to pick up on this important point. For the panel to have decided whether New Haven was motivated by a mixed motive would have been an “activist” position to take. And Sotomayor and her colleagues are no activists.

That should please those Republicans who say they don’t like judicial activism. Then again, some conservatives actually like judicial activism — when it’s promoting an ideologically conservative cause.

In fact, conservative columnist Stuart Taylor warns his compatriots in the opening of this new piece in the National Journal:

Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old “liberal activist” slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court’s conservatives are as activist as the liberals, especially on racial issues.

Taylor doesn’t think that’s a bad thing, because Taylor thinks that the court is just reflecting the fact that “Americans want racially preferential affirmative-action programs abolished.” But Taylor seems to forget that the whole point of the Supreme Court is that it’s a counter-majoritarian institution, designed to decide what’s constitutional, not what’s popular. That’s how we got rid of things like enforced racial segregation in schools, remember?

Anyway, Big Tent Democrat also points out the hypocrisy of conservatives now supporting the “judicial activism” they’ve long decried just because now it’s working in their favor.

In fact, Taylor now seems to question the very definition of the term, writing:

[I]s it judicial activism when the justices stretch the Constitution to go over the heads of the political branches — which are dominated by special-interest lobbies — not to overrule the voters but rather to give them what they want?

Wow, that’s a new one. So now the court is supposed to act to correct the distortions in the political process by using their insight as insulated Supreme Court Justices in Washington to discern the true desires of the American people?

It’s a whole new twist on “separation of powers.”

President Barack Obama (WDCpix)

With President Obama’s announcement of his first Supreme Court nominee likely to come as early as this week, liberals and conservatives jockeying for position in the confirmation battle have begun to find their roles. So far, it is conservatives who have generally succeeded in defining the terms of the debate, while liberals have been left to defend against charges of coded language and hidden agendas.

After Justice David Souter announced his retirement on May 1, Obama laid out a broad spectrum of qualities he will seek in his nominee at a press briefing. Among these were “a sharp and independent mind,” “a record of excellence and integrity,” “respect for constitutional values” and “empathy.”

Illustration by: Matt Mahurin

Given this range of terms to work with, conservatives quickly settled on “empathy” as the one around which to draw the battle lines, and the others faded from the debate. Obama did not utter the word “empathy” without forethought; he had used the term two years earlier as a senator in discussing Supreme Court nominations. But since his May 1 statement, he has had little control over which of the many criteria he put forth receive attention and which get shunted aside. Conservatives saw a potential political advantage in attacking “empathy,” and liberals have been unable to reframe the debate around other terms that may be more to their benefit.

Sen. Orrin Hatch (R-Utah) led the charge against “empathy.” “[Obama] said that a judge has to be a person of empathy,” Hatch said on ABC’s This Week two days after Obama’s statement. “What does that mean? Usually that’s a code word for an activist judge.”

Since then, Republicans have continued to hammer Obama for his “empathy” criterion. Former George W. Bush senior adviser Karl Rove called it code for a “liberal, activist Supreme Court justice,” and John Yoo, Bush’s head of the Office of Legal Counsel who has since come under scrutiny for his role in authorizing extreme interrogation techniques, cautioned that by nominating “a Great Empathizer,” Obama would “give Senate Republicans yet another opportunity to rally around a unifying issue.” Yet as conservatives set the rhetorical stage for the confirmation battle, liberals active in the judicial process are trying, with little success, to move the debate past “empathy.”

Conservative judicial experts believe the empathy argument is a political winner for Republicans, and they have shaped their talking points accordingly. Gary Marx, executive director of the Judicial Confirmation Network, a conservative organization that promotes “the confirmation of highly qualified individuals to the Supreme Court of the United States,” believes that judicial empathy and adherence to the text of the Constitution are incompatible.

“He said he wants someone who respects the rule of law, and he wants someone with empathy,” Marx said of Obama. “You can’t have it both ways, Barack.”

“Conservatives get a little upset when the president uses the word empathy,” agreed Brian Darling, the director of U.S. Senate relations at the Heritage Foundation and a former counsel to two Republican senators. “The word empathy doesn’t show up in the Constitution.”

While progressives involved in the judicial nomination debate dispute conservatives’ characterization of code words, they appear reluctant to offer new language to redirect the discussion, instead reacting with bewilderment and frustration to conservative attacks.

Goodwin Liu, a Berkeley law professor and the chairman of the board of directors of the American Constitution Society, a liberal legal organization, expressed surprise at the controversy that “empathy,” a positive term, has engendered. “I’m a little baffled by that,” he said. “If it’s a code word, I don’t know what it’s a code word for.”

On another conservative line of attack — judicial activism — liberal experts countered that this label was itself a code.

Bill Yeomans, the legal director of the progressive advocacy group Alliance for Justice, said that the term judicial activism “is sort of thrown out unthinkingly” by conservatives who use it as a proxy for a number of different lines of attack. “It’s a code word,” he said. In its own right, it “doesn’t really mean anything.”

Liu concurred. “Judicial activism is a result that someone doesn’t like,” he said. “That’s it.”

Yeomans and Liu both argued that if activism is measured by a departure from precedent, the conservatives on the bench have been more activist than their liberal counterparts. “By any definition of judicial activism, I think it’s fair to say that the conservatives have been the activists over the past ten years or so,” said Liu.

While the liberal experts took issue with the key terms used by conservatives — or at least their usage of those terms — they shied away from putting forward new catchwords. “I guess I’d want to get away from the concept of code words,” said Yeomans. He wants to see the confirmation hearings focus on intelligence, knowledge of the law, an open mind and a willingness to follow the facts — a reframing that would take the game off of the Republicans’ court.

Conservatives, on the other hand, have a number of catch phrases they want to apply to Supreme Court nominees. “We will continue to be using the metaphor of the neutral umpire,” said Marx, echoing the language used by now-Chief Justice John Roberts in his 2005 confirmation hearing. Marx listed two other qualifications a justice should possess: “judicial restraint” and “not legislating from the bench.”

He also pulled out a Biblical reference to make his point. King Solomon, he said, did not need “empathy” or “compassion” to resolve the famous baby case. “Was that compassionate?” he asked rhetorically. “No, it was wisdom.”

Despite their success in determining which terms have come to dominate the debate, conservatives acknowledge that their purpose may not be so much to block the confirmation of a justice as to score political and perhaps fundraising points for future elections.

Marx says that the confirmation debate will have “three huge implications”: it will educate the American people about the issues, help them understand Obama’s true political philosophy and set the stage for the 2010 U.S. Senate campaigns.

According to Darling, the effects of this battle could extend to 2012 as well. “Whoever this nominee’s going to be,” he said, “if the court moves forward on gay marriage or restricts the Second Amendment or goes forward with another change that’s unpopular among the American public… that’s something that will affect the president’s reelection bid.”

Still, the game is likely to change considerably when Obama announces his nominee. “To be honest, I think this is all noise,” Darling conceded. “It will become completely irrelevant when the nominee is put forth.”