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 to serve.
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 consider.
In a final speech on judges last month, Mr. Bush bragged 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 federal bench.
That’s an enticing thought to liberal interest groups but frightening to conservative groups such as the Committee for Justice. Last week, Executive Director Curt Levey announced that the group had crunched the numbers on the current justices’ ages, looked at life expectancies for Americans of those ages and concluded that “there is a roughly 75 percent chance that he will be able to establish a solid liberal majority on the U.S. Supreme Court” if he serves two full terms as president.
“The Supreme Court is just one liberal justice away from having a 5-vote liberal majority. Given Barack Obama’s decidedly liberal judicial philosophy, there’s little doubt that if he is elected and gets to replace Justice Kennedy or one of the four conservative justices, the result will be a solid liberal majority of at least five votes,” Mr. Levey wrote on his organization’s blog.
Stephen Dinan can be reached at email@example.com.
'Your papers, please' must never be heard in America
Independent voices from the TWT Communities
The “Silver Tsunami” created by aging Baby Boomers is hitting America. Let’s explore how we adjust to it, enjoy it and defy negative expectations about age.
A carefully guided tour through the confusing world of modern bookselling and publishing.
Reflections on raising families in a holistic way -- with a focus on nutrition and alternative health.
Benghazi: The anatomy of a scandal
Vietnam Memorial adds four names
Cinco de Mayo on the Mall