As this issue of POLICE arrives in your mailbox, Barack Obama is preparing to become the 44th President of the United States. And if you assembled the other 43 men who have held the office and asked them to give him advice, they would tell him that regardless of what your goal was when you ran for president or the positions of your platform, events shape the presidency more than the presidency shapes events.
Case in point: George W. Bush. The much despised departing President Bush came into office with the goal of healing the divide between Democrats and Republicans and uniting the country. He leaves office with the country more divided than ever.
Such are the perils of the office.
No one knows how Obama's presidency will play out. The only thing we do know is what he has said that he plans to do in the next four years. The following is an examination of what he's said about issues near and dear to American law enforcement and commentary from leading law enforcement experts on how it will affect you.
The Courts
One of the greatest powers of the president is the constitutional duty to nominate justices to the U.S. Supreme Court.
Justices don't serve at the pleasure of the president or at the electoral will of the people. Once seated, they and all federal judges serve until they choose to leave the office, die, or are impeached. Some judges serve for decades. Which means that the choice of Supreme Court judges is often the only lasting legacy of a president's term.
Even before President Obama was elected, pundits and legal scholars were handicapping his court appointments. Experts believe that between now and the time that he runs for re-election in 2012, the new president will have the opportunity to replace two justices. John Paul Stevens, 88, and Ruth Bader-Ginsburg, 75, are expected to retire.
POLICE Magazine legal columnist Devallis Rutledge says that little will change if Obama gets to name replacements for these liberal justices because he would just be replacing liberal with liberal.
"Just replacing Stevens and Ginsburg with people of like philosophy wouldn't make a substantial difference," Rutledge explains. "Where the difference would come is if President Obama gets to nominate a successor for one of the justices who consistently favors law enforcement."
According to Rutledge, right now the court is constituted with four liberals and four conservatives with Justice Anthony Kennedy swinging back and forth. That has been to the benefit of law enforcement.
But if Obama gets to replace a conservative justice, that could end the conservative advantage in many rulings. "Just about everything would be affected if that happens," Rutledge says.
Some examples of what Rutledge believes could happen if a liberal majority is seated in the Supreme Court include:
- Expanded application of the evidence exclusionary rule
- Reduced consideration of the "good faith" exception for bad warrants
- More lawsuits against police officers
- A prohibition or restriction on the death penalty
- Three strikes laws could be judged as constituting cruel and unusual punishment
That's a nightmare scenario for law enforcement, but it's unlikely to happen. Like Rutledge says, Obama will probably only be able to swap liberal for liberal. Also, what happens when a judge becomes a Supreme Court justice is anyone's guess. For example, David Souter was nominated by Republican George Herbert Walker Bush, but he's generally voted liberal. So there's no guarantee that a liberal president like Obama will necessarily end up nominating a justice who consistently votes liberal.
Since the Supreme Court is likely to remain largely conservative at least for now, Rutledge says a bigger concern is the lower courts. "The Supreme Court hears 80 to 110 cases per year. Most cases are settled at another level," he says. "There are a lot of openings at the district court and the appeals court levels that the next president will fill. Those judges are set for life, and they will affect a lot more cases because they rule on a lot more cases."