pageok
pageok
pageok
The Candidates and the Court:

On Tuesday, the WSJ ran two articles by Jess Bravin examining the approach to judicial nominations likely to be taken by each of the major presidential candidates. The articles provide a good side-by-side comparison of the candidates.

In "Barack Obama: The Present Is Prologue," Bravin writes:

On legal matters, including Supreme Court appointments, an Obama administration would likely be shaped by its leader's strong convictions on constitutional law. As in other areas, Sen. Obama's jurisprudence points to a change from the "strict constructionist" philosophy advocated by Republican presidential contenders from Richard Nixon to John McCain.

Precedents, text and other legal tools can provide a just outcome in "95% of the cases," Sen. Obama said before voting against confirming chief-justice nominee John Roberts. But for the "truly difficult" cases that remain, the "last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy." . . .

"I appreciate the temptation on the part of Justice Scalia...to assume" that if the 18th century text is followed "without question or deviation...all good will flow," Sen. Obama writes in his book, "The Audacity of Hope." "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document."

As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School.

In the other story, "John McCain: Looking to the Framers," Bravin writes:
In judicial nominations, Sen. McCain is likely to rely on advice from the Republican legal establishment, which has helped pull the court firmly to the right in recent years. Backers say that as president, Sen. McCain would use his "gut instinct" to make the final cut among qualified candidates.

"He's going to count on his advisers, people like Ted Olson [the litigator who won the Bush v. Gore case], to tell him that the person has a good law background," says Sen. Kyl. Sen. McCain likely "will be looking more at the kind of character the individual has."

Possible candidates could include federal appeals judges Janice Rogers Brown, Brett Kavanaugh, Priscilla Owen and William Pryor, former judge J. Michael Luttig and Paul Clement, a former Bush administration solicitor general. . . .

Sen. McCain's emphatic pledge to name committed, closely vetted conservatives to the bench aimed to assuage worries among conservative intellectuals that, faced with an opposition Senate, Sen. McCain might compromise with Democrats on judicial nominations.

The stories also contain some other interesting tidbits. for instance, Bravin reports that Senator McCain has pair relatively little attention to judicial nominations in the past, even deferring to Arizona's other Senator on district court judgeships. Bravin also cites Douglas Kmiec, a former Romney advisor, as among those supporting/advising Obama on legal issues.

Related Posts (on one page):

  1. Judges Make the Debate:
  2. The Candidates and the Court:
musefree (www):

As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School.


I am hoping he picks Sunstein.
10.9.2008 11:21pm
therut (mail):
They would all gut the 2nd amendment.
10.9.2008 11:36pm
Brooks Lyman (mail):
Obama's judicial philosophy bodes ill for supporters of the Second Amendment if he picks judicial nominees from a basically liberal, "activist" slate. Sooner or later - probably sooner - some 2A case is going to end up in front of the SCOTUS, and while I think that the individual right interpretation will stand, I fear that almost anything in the way of state and federal regulations - short of a total ban on firearms possession - would pass muster in an Obama court.
10.9.2008 11:38pm
David Warner:
"helped pull the court firmly to the right in recent years"

Because history is so replete with examples of impartial justice producing right-wing results. Please.

When liberalism has friends like these, enemies are superfluous.
10.9.2008 11:51pm
CrazyTrain (mail):
Wardlaw?!?! Seriously. Anyone who is familiar with the 9th knows she is a lightweight, big time. I knew she would be considered by Hillary because of her closeness with the Clintons, but no way, no how is Obama going to consider her. She just ain't up to the job. Sorry.
10.10.2008 12:04am
Psalm91 (mail):
Noun-verb-"activist judges". Day 1. Here we go again. DW: You are quite right: most right wing results are completely partial.
10.10.2008 12:04am
Assistant Village Idiot (mail) (www):
If I thought Obama truly meant that the difficult "last mile" was what had to be influenced by the depth of one's compassion, I wouldn't be that distressed. What experience shows is that progressives in general (though judges have been more cautious) ultimately mean "first mile" on such questions. I submit as evidence that this is what they, including Obama, bring up first in any discussion of controversial legal cases - narratives of effect on others.
10.10.2008 12:41am
David Warner:
You who live in the shelter of the Most High,

"You are quite right: most right wing results are completely partial."

Left-wing no less. For liberal results, however, seek impartiality.
10.10.2008 12:53am
Perseus (mail):
Bravin also cites Douglas Kmiec, a former Romney advisor, as among those supporting/advising Obama on legal issues.

I vote Kmiec most likely to become the next Justice Souter if he's appointed by McCain (which means he'll meet the same conservative opposition that Harriet Miers did).
10.10.2008 2:00am
MS (mail):
CrazyTrain is right. Judge Wardlaw is an empty robe, and she stands very little to gain from the fact that her husband is a Friend of Bill.

As for the conservatives on that list, as a dem, I'll take Owen or Luttig. Both have shown flashes principled independence. Indeed, I think Judge Owen's got some real Judge Kennedy potential.

Hard to know much about Paul Clement as a judge.
10.10.2008 2:19am
David Warner:
I wonder if Obama might have a Justice Souter in his stable.
10.10.2008 2:33am
MS (mail):
David Warner,

Sunstein.
10.10.2008 2:43am
DangerMouse:
If I thought Obama truly meant that the difficult "last mile" was what had to be influenced by the depth of one's compassion, I wouldn't be that distressed. What experience shows is that progressives in general (though judges have been more cautious) ultimately mean "first mile" on such questions.

Actually, it's a lot simpler than that. It just means that they want abortion to be legal, and in Obama's case, that "extra mile" presumably is the birth canal, after which you can still kill the child if you didn't want it born alive.

The "last mile" as compassion garbage is so transparently false that it's indefensible. It is all about abortion. It always is.
10.10.2008 2:50am
David Warner:
MS,

"Sunstein"

The color is not strong with this one. Suboptimal plumbing to boot.
10.10.2008 3:05am
DLL Circulation Worker (mail):
Sunstein is a slob. He'd be a tax burden because he'd require a maid to clean out his office. One cannot even see the floor. Also, he might be the first justice to take a dump while on his cell phone.
10.10.2008 3:28am
NickM (mail) (www):
Wardlaw is not an "empty robe" - she's a judicial moderate, much in the mold of Byron White. That you don't like her philosophy or decisions doesn't mean they're not well thought out or well written.

Nick
10.10.2008 4:11am
Brett:
This tells us basically what we already know: Obama will appoint living constitutionalist cranks, who'll treat the Constitution as a mere political tract that embodies their subjective policy preferences, rather than substantive law; whereas McCain will at least attempt to appoint judges who'll act as jurists rather than democratically-unaccountable super-legislators.
10.10.2008 5:20am
Lucius Cornelius:
I have concerns about an appointment of Deval Patrick. First, he is a politician now, not a sitting judge. Second (and I if my facts are incorrect, I hope someone will correct me), Patrick used a questionable strategy when he was the Acting Assistant Attorney General for Civil Rights. If I remember correctly, he would bring a civil action against a defendant, then threaten a criminal prosecution as a way of forcing that defendant to settle.

Back in 1999 I was working as an assistant county prosecutor. I had just read an article about Patrick's practices at the Dept. of Justice and I asked the Prosecutor what he thought about them. My boss's reaction was sudden and strong: "If I find out that you are doing that I will have you indicted for extortion!"

Whoa! Of course, Patrick was controversial even before he took over as AAG Civil Rights (which is why President Clinton never submitted him for Senate confirmation).

I would worry about having a politician with questionable (ends justify the means) ethics on the high court.
10.10.2008 7:10am
ed (mail) (www):
Hmmmmm.


"In judicial nominations, Sen. McCain is likely to rely on advice from the Republican legal establishment, which has helped pull the court firmly to the right in recent years. Backers say that as president, Sen. McCain would use his "gut instinct" to make the final cut among qualified candidates. "


Are we living in the same country?

Because last I knew most SCOTUS judges were appointed by Republicans and, until very very recently and entirely due to overwhelming pressure brought -against- the GOP, most of them were liberals through and through.

Seriously. What madness is this? Remember --Miers--? She couldn't possibly be described as rightwing and the GOP establishement was perfectly ok with her.
10.10.2008 9:44am
PubliusFL:
"'I appreciate the temptation on the part of Justice Scalia...to assume' that if the 18th century text is followed 'without question or deviation...all good will flow,' Sen. Obama writes in his book, 'The Audacity of Hope.'"

That makes sense if you believe the purpose of courts is to ensure that "all good will flow." I kind of thought their job was to interpret and apply the law.
10.10.2008 10:14am
mdmesquire:
Lucius,

I'm not sure that being a "politician" makes any difference. The vast majority of left-wing jurists have "ends justify the means" ethics. They begin a case with the outcome that they think is "just" and then backtrack through the constitution in an attempt to find support. And if/when no support is found, they call the constitution a "living document" and invent new constitutional principles to bolster the desired outcome. Being a politician wouldn't really make any difference.

Of course, this isn't to say that the right-wing jurists don't suffer from the same problem. Even Scalia, who I believe is genuinely committed to the original meaning of the constitution, succumbs to his pragmatic side every once in a while.
10.10.2008 11:05am
DiverDan (mail):
If Obama ever had me in his corner (he didn't) he would have completely lost me when he said he prefers Breyer's approached - I cannot think of a more unprincipled Justice on the Supreme Court. Of course, his vote against Roberts for CJ speaks volumes - Obama wants to greatly expand his favored judicially created "Constitutional" rights, like abortion and privacy, while completely gutting the rights actually appearing in the text of the Constitution, like the Second Amendment and the "Public Use" restriction on takings in the Fifth Amendment.
10.10.2008 11:59am
DangerMouse:
Obama wants to greatly expand his favored judicially created "Constitutional" rights, like abortion...

Since abortion is legal up to and including the actual moment of birth in the 9th month, the only way to expand abortion would be infanticide. Which, strangely enough, Obama supports.
10.10.2008 12:29pm
FWB (mail):
Whether liberal or conservative, honorable justices would adhere to strict constitutionalism because they would understand the relationship of the judge to the Constitution, subordinate/superior. To do otherwise is dishonorable. Our past and present judges wander all ofer the place like a lost dog, pissing here and there.
10.10.2008 1:01pm
Court Watcher (mail):
Dean Harold Koh would be a perfect, inspired choice: credentials and then some, brilliance, leaderhship ability, AND anti-executive views on the constitution and foreign affairs that, after Cheneygate, are unassailable. And he's a wonderful guy.
10.11.2008 2:26pm