Liberal CNN legal analyst Jeffrey Toobin appeared on the Tavis Smiley show on PBS on Wednesday night, and Smiley focused on several "hot button" issues that were largely ignored in the general election: campaign finance reform, abortion, racial preferences, and gun control. Toobin insisted that Obama’s long list of small (and unidentified) donors suggests "there’s less risk of corruption, I think." On Supreme Court picks, he said Obama will pick someone with liberal views on abortion and racial preferences, but insisted that Obama really matches Reagan appointee Sandra Day O’Connor’s views on race. On gun control, Toobin defined the struggle strangely, like he wasn't very smart about weapons: "What's the line between a handgun in D.C. and a surface-to-air missile? I think the courts are going to have to figure that out."
First, Toobin found no need for reform of the current campaign finance system, with the favorable results and all:
SMILEY: The money in this campaign, with all due respect to Barack Obama and the three-quarters of a billion dollars he raised in this campaign, do we need to get back now to a serious conversation about campaign finance reform? Because everybody can't do what Obama did.
TOOBIN: Everybody can't, but the one thing that I think is different about his fundraising that is almost unprecedented is the fact that it came from so many small contributors. Where the risk of campaign finance is that people feel like they own you if they give you a lot of money, but if you get that much money from small contributors, there's less risk of corruption, I think. So he did it well, but the Supreme Court has said that there is almost no way, constitutionally, to restrict campaign spending, so I think we're kind of stuck with the system we have.
What? Actually, the Supreme Court upheld McCain-Feingold, but later trimmed it around some of the free-speech edges. But it didn't say there's "almost no way" for restrictions liberals used to push so intensely to impose.
The conversation naturally turned to Obama’s potential Supreme Court nominations (Toobin’s still plugging his Court book, The Nine, the one with the imaginary thoughts of Clarence Thomas being "furious all the time" in it.) While Smiley suggested he didn’t like the term "identity politics," he wanted to know what role it would play. Toobin suggested that Obama may have to pick a woman if Ruth Bader Ginsburg retires, and will feel pressure to appoint a Hispanic. Smiley was worried that whites who voted for a "post-racial" president might be surprised if he sticks with the racial-quota status quo:
SMILEY: So issues -- every president says "There is no litmus test for my choice for the Supreme Court, and we all know they're lying. (Laughter.)
TOOBIN: Yes, basically. Yes. Yes, yes.
SMILEY: With all due respect. There are certainly issues that matter to them. What issues are going to come to play on Obama's -- President-Elect Obama's list, should he get this opportunity?
TOOBIN: Well, I think there are two big ones. The first is abortion. He will appoint a supporter of Roe v. Wade. He will appoint someone who will say that the Constitution protects a woman's right to choose abortion. He will also choose someone who will say that affirmative action is constitutional, and that issue is really on the knife's edge right now with the Supreme Court. There are really maybe five votes at the moment to strike down virtually any kind of racial preference, whether it's in employment, whether it's in schools.
One of the biggest decisions of the past two years was the court's decision in the Louisville and Seattle school district cases where the courts -- where those school districts, on their own, not forced by any court, said, look, we care about siblings going to school together, we care about neighborhood schools, but we also care about a measure of racial diversity, and the court said no, you couldn't do that. So that's something where I think Obama feels strongly and his nominee will feel strongly as well.
SMILEY: Let me challenge you on that, just for the sake of argument here, on two different fronts. How does he respond to pressure, then, from people who voted for him who thought that voting for him meant that we would live in a post-racial America, that we would not be being counted, that we wouldn't be doing things that speak to racial preferences. Number one, how do you respond to that kind of pressure from certain Americans?
TOOBIN: Well, the argument is -- I don't think Obama said he was against affirmative action.
SMILEY: But he pivoted on that, and I want to come back to that in a second. On affirmative action.
TOOBIN: Right, but what he said and I think what he believes is that diversity is a value in and of itself. One of the most important things in the famous University of Michigan law school case, Justice O'Connor's opinion was that she said, "Look, we need a diverse work force to travel around the world and sell our products. We can't have an all Whites graduating from our law schools, from our business schools. In our military, we can't have an officer corps from West Point and Annapolis exclusively White. Diversity is an affirmative value, not something that we should be ashamed of. Something we should be proud of and work to make possible. So that, I think, is consistent with Obama's message.
On gun control, Toobin just surrendered to his liberal, partisan Inner Toobin and started mocking Antonin Scalia for supporting the Second Amendment with tank and missile analogies, which made him sound a little dim, if he can't distinguish a firearm from a missile:
SMILEY: What about gun control?
TOOBIN: Gun control is an issue that really sort of exploded on the scene this year, with the decision to strike down the District of Columbia gun laws. What we don't know is how far that decision goes. I think it is safe to say that Justice Scalia would approve of a law that says you can't have a tank in your backyard.You don't have a constitutional right to a surface-to-air missile. What's the line between a handgun in D.C. and a surface-to-air missile? I think the courts are going to have to figure that out. There is some line there but we don't know where it is, and you're right, that's another issue that's going to be percolating through the courts.
SMILEY: In 10 seconds, why did this issue not come up more in the campaign?
TOOBIN: Because swing voters don't care about it. The partisans on both sides care strongly about the Supreme Court, but the people who decide the outcome of elections tend not to care about the Supreme Court.
A better answer: this issue didn't come up because (a) the candidates didn't highlight them, and (b) the media and the general-election debate moderators failed to raise them.