- 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.”

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.

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