- The Washington Times - Monday, November 3, 2008

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 the stump.

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 month.

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.

The courts depend on more than the presidential election. If Democrats can get 60 members of the Senate, they can defuse what’s likely to be a Republican push for revenge, after Democrats made history by repeatedly filibustering Mr. Bush’s Appeals Court nominees.

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 votes.

“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 nominated?”

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 said.

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.”

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