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:

Judges Make the Debate:

Last night, Bob Schieffer asked both candidates whether they would nominate judges who disagreed with their respective views on Roe v. Wade. Here is the transcript:

SCHIEFFER: Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't.Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?

MCCAIN: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.

SCHIEFFER: But you don't want Roe v. Wade to be overturned?

MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test.

Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion. 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."

I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about. Senator Obama voted against Justice Breyer [sic] and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

SCHIEFFER: All right.

OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.

Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.

So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

SCHIEFFER: Time's up.

MCCAIN: Obviously, that law waved the statute of limitations, which you could have gone back 20 or 30 years. It was a trial lawyer's dream.