(by Stephen Dinan, WashingtonTimes.com) – Judicial nominees are a driving force for many voters, and there’s a gaping difference between Democratic presidential nominee Sen. Barack Obama and his Republican opponent, Sen. John McCain, as to whom they would try to appoint to the federal bench.
Yet it’s been all but ignored, earning just a single question in the
official presidential debates and no attention from the candidates on
That’s odd in a race that pits Mr. Obama, a man who taught
constitutional law and says he knows some prospective nominees
personally, against Mr. McCain, who has an extensive voting record on
nominees, fought hard to confirm Judge Robert Bork to the Supreme
Court, and has been crystal clear in promising to promote judges in the
mold of the court’s current conservatives.
“I think the role of the Senate is to ratify a nomination if that
person’s qualified, not set up ideological standards, as Senator Obama
has done,” Mr. McCain told The Washington Times in an interview last
Both Mr. McCain and Mr. Obama say they have ruled out specific
litmus tests, though it is not clear how Mr. Obama squares that with
his votes against both of President Bush’s Supreme Court picks, who had
extensive legal qualifications.
During the Democratic primary campaign, Mr. Obama told a Planned
Parenthood conference exactly what he would require in a judicial
nominee: “We need somebody who’s got the heart, the empathy, to
recognize what it’s like to be a young teenage mom. The empathy to
understand what it’s like to be poor, or African-American, or gay, or
disabled, or old. And that’s the criteria by which I’m going to be
selecting my judges,” he said, according to MSNBC. ….
Republicans say the issue is powerful enough to swing elections a
few percentage points, and Mr. Bush made extensive use of it in his
re-election campaign in 2004. His call for better judges was his most
consistent applause line on the campaign trail.
Mr. McCain, however, has been mostly silent on the issue, except for
a brief exchange in the final presidential debate when he attacked Mr.
Obama for his votes on Chief Justice John G. Roberts Jr. and Justice
Samuel A. Alito Jr., and for failing to join the Gang of 14 senators
who headed off the so-called “nuclear option” that would have
eliminated the use of a filibuster to prevent judicial confirmation
“We got together, seven Republicans, seven Democrats. You were
offered a chance to join. You chose not to because you were afraid of
the appointment of, quote, ‘conservative’ judges,” Mr. McCain said.
Pastor Rick Warren asked the two candidates at his Saddleback Church
forum, “Which existing Supreme Court justice would you not have
Mr. Obama mentioned the two conservative justices named to the court
before he entered the Senate and all but specified that he would not
pick a qualified jurist with whom he disagreed.
“I would not have nominated Clarence Thomas. I don’t think that he
was a strong enough jurist or legal thinker at the time for that
elevation, setting aside the fact that I profoundly disagree with his
interpretations of a lot of the Constitution. I would not nominate
Justice [Antonin] Scalia, although I don’t think there’s any doubt
about his intellectual brilliance, because he and I just disagree,” he
Mr. McCain responded to the same question by mentioning all four
liberal members of the current court: “With all due respect, Justice
[Ruth Bader] Ginsburg, Justice [Stephen G.] Breyer, Justice [David H.] Souter and Justice [John Paul] Stevens.”
In an elaboration that was interrupted three times for applause, he
said he would make judicial nominations “based on the criteria of
proven record, of strictly adhering to the Constitution of the United
States of America and not legislating from the bench” and called Chief
Justice Roberts and Justice Alito “my most recent favorites.”
Mr. Obama has voted against both Supreme Court justices who have
been nominated during his short tenure in the Senate. He said in the
final debate that he will look for justices who can “provide fairness
and justice to the American people.”
Mr. McCain has voted for every Supreme Court nominee, arguing that a
president, by dint of winning the election, has won the right to put on
the bench those who share his philosophy, as long as they are qualified
He even urged his colleagues to accept former Arizona Gov. Bruce
Babbitt, a Democrat, whom President Clinton was considering nominating
for the seats eventually taken by Justices Ginsburg and Breyer. Mr.
McCain described Mr. Babbitt as a centrist who would have been more to
his liking than Mr. Clinton’s eventual choices.
“When President Clinton was president, frankly, I really wish he had
nominated Bruce Babbitt instead of Justice Ginsburg,” Mr. McCain said
in an interview.
While he supported Mr. Clinton’s Supreme Court nominees, Mr. McCain
didn’t back every one of his appellate and District Court picks, and
even joined in an attempted filibuster against one Circuit Court
nominee, Judge H. Lee Sarokin, in 1994. Judge Sarokin was elevated to
the 3rd U.S. Circuit Court of Appeals over the opposition of
conservatives, who protested decisions such as one telling a library it
could not bar a homeless man from its premises.
Speaking to NBC last month, Mr. Obama said he would have no problem
asking a judge about his legal philosophy, and that includes whether
they subscribe to a right to privacy not mentioned in the Constitution,
but which he said is implied.
“If a justice tells me that they only believe in the strict letter
of the Constitution, that means that they probably don’t believe in a
right to privacy that may not be perfectly enumerated in the
Constitution but, you know, that I think is there,” he said. “The right
to marry who you please isn’t in the Constitution, but I think all of
us assume that if a state decided to pass a law saying, ‘Brian, you
can’t marry the woman you love,’ that you would think that was
unconstitutional. Well, where does that come from? I think it comes
from a right to privacy that may not be listed in the Constitution, but
is implied by the structure of the Constitution. So I can have that
conversation with a judge.”
Mr. Obama has taught constitutional law at the University of Chicago
and said he knows “a lot of the potential candidates” he might
In a final speech on judges last month, Mr. Bush [noted] that he is
responsible for one-third of all federal judges serving today, which
underscores how much influence a two-term president can have over the
Copyright 2008 News World Communications, Inc. Reprinted
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1. Define “litmus test” as used in paragraph 5.
2. What criteria did Sen. Obama tell members of a Planned Parenthood conference he would use when appointing judges?
3. Sen. Obama said that Justice Scalia is intellectually brilliant. Why did he then say he would have opposed Justice Scalia’s nomination?
4. After naming the four liberal members of the current Supreme Court as those he would not have nominated, what criteria did Sen. McCain say he would use to nominate judges?
5. What is Sen. Obama implying in paragraph 22?
6. Considering the vast difference of opinion between Senators Obama and McCain on judicial nominees, why do you think the media has not highlighted this issue? Why do you think the candidates themselves have not placed more emphasis on this issue?
7. Do you agree with Sen. Obama or Sen. McCain on the issue of judicial appointments? Explain your answer.
NOTE: Because six members of the Court will be age
69 or older when the next president is inaugurated, it’s likely that
multiple vacancies will occur during the next administration. This will
create a rare opportunity for the next president to alter the direction
of the High Court for the next several decades. It’s crucial,
therefore, to have a president who understands the judiciary’s proper
role. As Ronald Reagan once noted, “[The Founders] knew that the
courts, like the Constitution itself, must not be liberal or
conservative.” For Reagan and for the Founders, judges were to be
selected based on their ability to put political preferences aside and
interpret the Constitution and laws based on their original meaning.
Rather than scrutinizing judicial nominees based on their perceived
political leanings, the next president should appoint judges who apply
the law regardless of their own policy preferences. (from
“Misunderstanding the Role of Judges” by Deborah O’Malley)
On the Role of Judges
Judges are like
umpires in baseball or referees in football or basketball. Their role
is to see that the rules of court procedures are followed by both
sides. Like the ump, they call ’em as they see ’em, according to the
facts and law-without regard to which side is popular (no home field
advantage), without regard to who is “favored,” without regard for what
the spectators want, and without regard to whether the judge agrees
with the law. (from the American Bar Asociation)
“The role of a judge is to be a neutral interpreter of already
established law, not legislator of new law or social policy. A judge
can have his or her own opinions, even strong ones, and still read the
law neutrally. Fundamentally, judges are expected to not bring their
personal politics and philosophies to the bench. Judges are expected to
read the law in its clear intent and apply it without regard to result.
Changing the law should be left to the people and their legislators.”
Sean Rushton, Committee for Justice Executive Director, from the
“One of the big confusions in the…Senate fight over the
confirmation of judicial nominees is that this is an issue about
‘liberal’ judges versus ‘conservative’ judges. The vastly more
important issue is whether people who go into court should expect their
cases to be decided on the basis of the law or on the basis of the
particular judge’s own philosophy…Liberals have rooted for judicial
activism because this activism has favored liberal causes and liberal
views on such issues as abortion, the death penalty, gay marriage, and
racial quotas. But activism can be used by any judge for any purpose.”
Thomas Sowell, Hoover Institution
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