^{Related: Barack Obama on Gun Rights, Gun Control, and the Second Amendment}

George F. Will brings us the strange case of J. Harvie Wilkinson, who was shortlisted twice by the Bush administration for appointment to the U.S. Supreme Court but has since come out against a good ruling supported by both of the eventual Bush appointees:

... [A] distinguished conservative jurist argues that the court's ruling [in District of Columbia v. Heller] was mistaken and had the principal flaws of Roe v. Wade, the 1973 abortion ruling that conservatives execrate as judicial overreaching.

Both rulings, says J. Harvie Wilkinson, suddenly recognized a judicially enforceable right grounded in "an ambiguous constitutional text" ...

Wilkinson says that when a right's definition is debatable, generous judicial deference should be accorded to legislative judgments -- particularly those of the states, which should enjoy constitutional space to function as laboratories for testing policy variations.

One of the most frequently-asked questions I've received from conservative readers is why I endorsed Obama over McCain, given McCain's superior position on gun rights. I usually respond that gun rights is not the only civil liberties issue out there, but consider this...

If a Supreme Court appointee believes, as many conservative judges do, that the Supreme Court should abide by what is generally a very narrow, decidedly non-civil libertarian reading of the Constitution that doesn't protect abortion and birth control access, pornography, the right to counsel, lesbian and gay rights, private telephone calls, habeas corpus, humane prison conditions, and so on and so forth...then how comfortable should civil libertarians be that such judges will draw the line at gun rights? Why can a judge who reads the Constitution narrowly in every other instance be trusted to adopt a broad, generous interpretation of the right to bear arms?

Heller was, of course, a 5-4 conservative ruling. But the doomsday scenario that many conservatives propose is that an Obama presidency could mean the end of Heller, when the Bush administration was a hair's breadth from appointing a justice whose opinion would have generated the same result anyway. So why would any civil libertarian have voted for McCain and put all of these other rights at risk, just on the off chance that his judicial appointees might one day have the opportunity to preserve the Second Amendment? That would have been a very expensive gamble.

^{Related: Barack Obama's Legislative Agenda}

It's a little early to assess where the Obama administration will stand on civil liberties. Early signs are mostly encouraging, but there are reasons for concern with respect to the issues of drug policy and immigration enforcement.

Before we go further, it's important to note that--regardless of how impressive or unimpressive a cabinet official's past civil liberties record might be--Barack Obama will ultimately be shaping his administration's policy agenda. But these appointments are still important for three reasons:

1. Presidential decisions are made under the influence of cabinet officials, who act as subject area specialists in their briefings with the president.
2. Cabinet officials also oversee day-to-day decisions with which the president will not necessarily be as directly involved.
3. The selection of cabinet officials, like the selection of running mates, can provide clues on how a president-elect or nominee is likely to govern in office.

Read more...

^{Related: The Democratic Party on Civil Liberties}

Kagro X of DailyKos sums up much of the progressive blogosphere's reaction to the decision to allow Senator Joe Lieberman (I-CT) to continue as a member of the Senate's Democratic leadership:

Sad.

But good for the blogging business, the way a Sarah Palin victory would have been good for the late night comedy business.

Okay, so let's look at the case against letting Lieberman keep his gig: He endorsed McCain, he spoke at the Republican National Convention, he helped a few Republican Senate candidates, and he supported the Iraq War long after he should have. Of these four concerns, the first three are partisan and the fourth is ideological.

I'm not interested in partisan concerns, but the ideological concern is a biggie. Obviously the Iraq War is one of the most important issues our country faces, and Lieberman is on the wrong side of the issue to be a Democrat. This is not a minor issue. But he can hardly be blamed for starting the Iraq War when the vast majority of Democratic senators (including Hillary Clinton and Joe Biden) joined him in his vote to grant President Bush the authority to wage war, and he can hardly be blamed for failing to support the withdrawal of troops when the withdrawal of troops is a decision that rests in the hands of the president, not the Senate. (It's true that the Senate could theoretically defund the war, but that would require a 67-33 majority in order to override the presidential veto--and abruptly defunding the war could prevent personnel from being able to evacuate safely.)

So Lieberman's position on the Iraq War, while not a position shared by mainstream members of the Democratic Party, is not particularly relevant. If that's the only ideological basis for removing Lieberman from his position of leadership and/or from the Democratic caucus, then it's fairly weak.

Its weakness is particularly visible when we compare Lieberman to a socially conservative Democratic senatorial candidate such as former Mississippi governor Ronnie Musgrove (D), who mounted a recent unsuccessful challenge to Senator Roger Wicker (R) for Trent Lott's old seat. Musgrove began his campaign by arguing that the federal government had not done enough to get rid of undocumented immigrants (a position that understandably raised some eyebrows among progressive civil libertarians), then boasted of his terrible record on several key civil liberties issues to prove he wasn't a liberal. From Musgrove's own campaign press release:

Musgrove Broke With National Democrats And Supported Pickering To U.S. Appeals Court: In 2003, Musgrove broke ranks with national Democratic leaders and supported President Bush's nomination of Charles Pickering to the 5th U.S. Circuit Court of Appeals. The nomination was blocked by Democrats. (Associated Press, 1/14/04)

Pickering was blocked by Democrats (including Lieberman, who voted against his confirmation) due to his problematic judicial record on civil rights issues. Musgrove went on to crow that he was not especially pro-choice, and was no friend of the LGBT community either: Read more...

^{Related: Barack Obama's Legislative Agenda}

The results of last Tuesday's election still haven't sunk in for me. When anti-gay propositions passed in Arizona, Arkansas, California, and Florida, I was immediately disappointed. Disappointment is an emotion I'm used to on election night, especially after two terms of George W. Bush.

But when Barack Obama won the presidency, my brain couldn't quite process it. A professor overseas wrote me asking what my reaction was, and it took me several days to answer that question. The magnitude of this is extremely significant; I'm beginning to understand what it must have felt like to be a conservative in 1980. The last Democrat who wasn't a Southern Baptist governor who rose to power partly on Dixiecrat support was Lyndon B. Johnson in 1964, who was also (not coincidentally, I suspect) the last Democrat to get a majority of the popular vote. We can't dismiss the importance of the fact that Obama is a black man, either. But more important than all of that, to me, is what his election will do for national policy.

Let's imagine for a moment that Justice John Paul Stevens announced tomorrow that this will be his last Supreme Court session. Under President George W. Bush, every major civil rights or civil liberties decision of the past 50 years would be in some kind of danger because the addition of one more conservative justice could create a 5-4 right-wing judicial activism bloc. But under President Barack Obama, the retirement of Justice Stevens will almost certainly mean the appointment of a justice who shares his commitment to basic civil rights precedents.

Or we can look at the Employment Non-Discrimination Act (ENDA), which would protect LGBT employees from being fired or demoted as a result of coming out. When the bill came up last year, I actually suggested that it be split in two--one ENDA for sexual orientation, another for gender identity--so that Bush wouldn't veto the whole thing over the gender identity clause. But Obama is committed to a trans-inclusive ENDA, so that's no longer an issue.

We can look at immigration reform, though this is an issue that's affected more by Democratic gains in Congress than by the election of a new president. Still, we can be reasonably certain that draconian bills like 2006's H.R. 4437 are completely off the table for at least four years--and that any immigration proposals passed in the interim will include a path to citizenship.

The "global gag rule," blocking U.S.-funded international access to any health care organizations that are pro-choice (regardless of whether they actually perform abortions), will be gone. "Don't ask, don't tell," which weakens the U.S. armed forces by depriving it of tens of thousands of qualified personnel who happen to be gay or lesbian, will be gone. The increasingly censorious FCC will more than likely be reined in by the appointment of new committee members. The Pentagon will likely stop infiltrating pacifist groups and other organizations deemed unpatriotic.

However one might feel about the rest of the Obama agenda, the civil liberties climate in the United States is about to improve. That's good news for anyone who values their personal freedom, or the constitutional protections that guarantee it.