Obama and McCain on appointing Supreme Court Justices
One of the questions Rick Warren asked the two major party presidential candidates at last Saturday’s Saddleback Forum was, “Which existing Supreme Court justice would you not have nominated?” Sen. Barack Obama, who was the first to be interviewed by Warren, listed two justices: Clarence Thomas and Antonin Scalia. Obama asserted that Thomas was not “a strong enough jurist or legal thinker at the time for that elevation.” Conversely, he praised the legal mind of Scalia. The commonality between the two justices which, presumably, makes up the main criterion for Obama’s hypothetical rejection of each is that he disagrees with them on how the Constitution is to be interpreted. What I find remarkable is that preemptive agreement with Obama seems to be the standard by which the he will choose his justices. Not that this all that surprising for a potential president, but it does nevertheless call into question the extent of the separation of powers. Interestingly, Obama omitted mentioning Justices John Roberts and Samuel Alito, likely on account of their short tenure thus far on the bench.
Sen. John McCain reeled off the liberal bloc: “Justice Ginsburg, Justice Breyer, Justice Souter, and Justice Stephens.” Like Obama, McCain seemed to set forth his criteria for his selection of would-be justices: “This nomination should be 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.” Without question (and whether or not you agree), McCain’s rationale is more respectable insofar as it touches on the actual expertise and action of a judge as opposed to being a mere appeal to ideological agreement. I can envision a greater diversity in appointed justices under a McCain presidency, though this is not necessarily a positive portent in itself (remember Reagan’s curious choices of Sandra Day O’Connor, Robert Bork, Douglas Ginsberg, and Anthony Kennedy).
Two observations:
1. LifeSite News, which has all but endorsed McCain, has already imported a foreign, albeit light, meaning into McCain’s and Obama’s replies, cashing out their respective answers in terms of the abortion debate. But that, I think, is going well beyond anything that Obama and McCain were explicitly intending with their response (especially McCain). While there seems to be no question that Obama will seek to appoint pro-Roe justices, McCain is wild card in this regard. Remember that during his 2000 campaign for president, he went on record saying that he would have no pro-life “litmus test” for Supreme Court appointments.
2. McCain’s assertion that he would not have nominated Justices Ginsberg and Breyer is rather curious in light of his earlier comments in support of their nomination. In June, McCain met with Hillary Clinton supporters in Virginia, hoping to corral some of the more independent strays. The event was closed to the public and media, and Will Bower, founder of PUMA and present at the meeting, revealed the possible reason why. When Bower asked McCain about judges, McCain “pointed out that he supported Bill Clinton with both Ginsburg and Breyer.” So on the one hand, McCain brags to Clinton supporters that he supported Justices Ginsburg and Breyer, and, on the other, he tells a national audience that he never would have nominated them. Perhaps the odd logic here is that while he himself would not have nominated them hypothetically, he stands by his support of their nomination in actuality. If we do not go with the most obvious reason for this confusion (i.e., McCain shifts his positions according to receptivity of audience), perhaps we can attempt to confusedly reconcile things by submitting that McCain does not view supporting and confirming Supreme Court justices as important as nominating Supreme Court justices. Or, perhaps, he considers the difference between the presidential act of nominating and senatorial act of confirming to be one of wide degree. But this alone does not fully reconcile his divergent expressions.
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“So on the one hand, McCain brags to Clinton supporters that he supported Justices Ginsburg and Breyer, and, on the other, he tells a national audience that he never would have nominated them.”
I think what is needed is a distinction between approving of someone else’s nominee and choosing the nominees yourself. It’s possible to respect the and support the nominees of the other party while admitting they would not be your choice if you were the one doing the nominating. This can be done out of respect for the office of the Presidency.
The question was “Which one…would you NOT have nominated?” Considering the actual question, rather than the issue of support for a nominee, I don’t think there was a problem with EITHER candidate’s response.
Obama wouldn’t have chosen Thomas because he wasn’t qualified, and Scalia because of his preposterous “strict construction” (actually, perversely antiquarian) theoies, and McCain wouldn’t have NOMINATED Ginsberg, Bryer, Souter or Stevens.
In answering the way he did, McCain in no way confutes his support for Ginsberg or Bryer when their nominations were recommended to the Senate: Presidents, as a result of winning a mandate at election-time, have a RIGHT to have their nominees approved by the Senate, regardless of “legal philosophy.” That’s one of the things elections are for, and the American electorate would be naive to believe otherwise.
1. I think it’s too bad that Obama, of all people, resorted to the typical cliche of criticizing Thomas’s intellectual stature while praising Scalia on that point. Few people who are minimally informed about Supreme Court decisions make that gaffe.
2. McCain has said that he wouldn’t have a pro-life litmus test, but given his past history of nearly perfectly consistent pro-life votes (excepting ESCR), the proper way to view him is as someone who votes the right way 98% of the time but who sometimes tries to talk like a middle-of-the-roader. Look at any number of pro-choice websites . . . they know to look at McCain’s voting record, which is the only thing that really counts. (As I’ve said, McCain is the inverse of Clinton on this issue . . . Clinton liked to talk like a moderate as well, pretending to be someone who wanted abortion to be “rare,” but his voting record was perfectly pro-choice.)
3. The easy answer to your point 2 is that McCain views Supreme Court nominations as primarily the choice of the President. Thus, while he wouldn’t have nominated a liberal in the first instance, when a liberal President nominates a liberal Justice, a Senator’s role is to be more deferential. Agree or disagree, that’s a consistent position that many people do hold.
Poli, Did I do something to warrant moderation?
An additional response to point 2 is that many Republicans (not just McCain) have pointed out that they voted for Ginsburg and Breyer because they didn’t see their role as simply to block all liberal Supreme Court appointments at all costs. Their point in making that argument is to criticize Democratic Senators for trying to block Alito and Roberts, and to highlight the fact that some Democrats in the Senate do seem to think that their role is to block any and all conservatives (and especially anyone who would be likely to vote against Roe). Thus, for example, Democrats blocked Miguel Estrada from being named to the D.C. Circuit, because he was Hispanic and would be a likely Supreme Court nominee. (A memo to Dick Durbin on Nov. 7. 2001 said that various Democratic groups wanted to block Estrada because “he is Latino.”).
Same here. Are you putting guys like Mark D. and digbydolben on moderation too? Their snideness-to-substance ratio is far higher than that for either me or Zack.
I didn’t put anyone on moderation. I will check through the queue.
Hmmm…S.B., Zach, and digbydolben were all in moderation. Not sure why. My apologies.
Thanks for the clarification
Just for the record, I didn’t put anybody in moderation either.
A couple of points.
First, I actually agree with SB’s point on Thomas. There are many many valid criticisms of Thomas, such that he is an extremist, but calling him “dumb” is not the way to go.
Second, McCain is being disingenious when he talks about not legislating from the bench. Both sides do that all the time, including Scalia and Thomas, who often show little respect for the will of the legislature.
I think what is needed is a distinction between approving of someone else’s nominee and choosing the nominees yourself.
In answering the way he did, McCain in no way confutes his support for Ginsberg or Bryer when their nominations were recommended to the Senate: Presidents, as a result of winning a mandate at election-time, have a RIGHT to have their nominees approved by the Senate, regardless of “legal philosophy.”
Yes, I see both of your points. I stated this a bit weaker than you two in my final paragraph. I wonder, however, on one aspect here: Notwithstanding the difference between a presidential nomination and senatorial confirmation, what is the difference in stating explicit support in either case? Are not nomination and confirmation two modes of this expression of support? If not, then what are they?
Given the ideological settlement of both parties since the early 90s with their base and outlier constitutiencies – meaning very few “conservative” Democrats and “liberal” Republicans – the pressure groups of each party have increased their influence. So when it comes to the courts, a generic Democrat and a generic Republican are fairly predictable in the sorts of judges who will be appointed. When there is unpredictability, as with Miers, supporters are quite capable of throwing a successful hissy fit.
This, combined with the political power-grabbing of the courts, makes judges a powerful and legitimate concern in the race for president.
Hey Poli,
Here’s my possibly oversimplified answer…
When a President nominates someone for the Supreme Court, this generally means the President agrees with their judicial philosophy and also that they are well-qualified for the job.
When a Senator votes to confirm the President’s nominees, he is supposed to put his/her preferred judicial philosophy aside, and out of respect for the office of the Presidency approve the President’s nominee conditional only upon the nominee’s technical competence.
The confirmation hearings exist to make sure the President doesn’t appoint someone who isn’t technically qualified for the job, and also to throw the at least superficial approval of the popular government behind the new justice. It’s not supposed to be ideological test.
Zach,
I don’t think your answer is oversimplified, but rather helpful. In light of it, I wonder why McCain would wish to highlight his support for Justices Ginsberg and Breyer. If his confirmation was only an affirmation of the technical competence of each nominee, then it seems that stating his support for them is a bit stronger than this affirmation.
I think it’s too bad that Obama, of all people, resorted to the typical cliche of criticizing Thomas’s intellectual stature while praising Scalia on that point. Few people who are minimally informed about Supreme Court decisions make that gaffe.
I am more than minimally informed about S.C. decisions and was highly engaged in the matter of Thomas’ confirmation. Senator Obama made no gaffe. Sincere and well informed people might have different opinions but I and many others whose professional responsibities cause us to be involved in these matters agree with Senator Obama.
I agree with Obama in that Thomas probably was not qualified and that Scalia is a legal genius.
This method of reaching back into the 80′s and even 70′s for evidence that presidents make inconsistent nominations doesn’t work for me. We’ve become much more polarized. Scalia was confirmed unanimously. Can anybody imagine a pro-life nominee being confirmed unanimously today? Roe has become an unspoken litmus test and there’s no reason to believe that McCain can undo that. If you do want to look to history, at least give more weight to recent history. All five of the justices nominated in the last 17 years have shared their nominating party’s ideology.
Poli,
We’re agreed – it makes little sense as to why he would bring his support for those justices up. Perhaps he’s still trying to maintain his “maverick” or “bipartisan” or whatever appearance.
I am more than minimally informed about S.C. decisions and was highly engaged in the matter of Thomas’ confirmation. Senator Obama made no gaffe. Sincere and well informed people might have different opinions but I and many others whose professional responsibities cause us to be involved in these matters agree with Senator Obama.
Depends on what you mean. If you agree with Obama only to the extent that he limited his criticism of Thomas by saying that he wasn’t a “strong enough jurist or legal thinker AT THE TIME,” then you could agree in good faith. If you’re saying that he isn’t a strong enough jurist or legal thinker today, then you don’t know what you’re talking about. You can disagree with him on the merits, but even the most diehard liberal law professors gladly admit that Clarence Thomas is a perfectly capable legal thinker.
For instance, Jack Balkin of Yale Law School has said [http://balkin.blogspot.com/2007/09/clarence-thomas-and-alberto-gonzales.html], “After taking the bench Justice Thomas quickly disproved any doubts about his abilities as a jurist; he has proved himself to be one of the theoretically interesting Justices on the Supreme Court.”
In the comments to that post, Sandy Levinson (another extremely liberal law professor) has said , “I’m certainly not a fan of Justice Thomas, but I agree with Jack that he has more than acquitted himself in terms of displaying whatever we mean by ‘legal competence.’ I disagree with many of his decisions, some of which I think are quite dreadful in the vision they display of America’s future, but that is neither here nor there with regard to deciding whether he is smart enough to be on the Court. He is.”
If you think Thomas is not a capable lawyer, explain what is wrong with this decision, if you can: http://supct.law.cornell.edu/supct/html/02-1845.ZO.html
Perhaps Obama’s comment qualifier “at the time” was meant as a sort of compliment. After all, Obama himself can hardly be considered any more qualified to serve as President as Thomas was to serve as Justice. In fact, probably less so.
Thomas was rated as “qualified (substantial majority) / not qualified (minority)” by the ABA at the time. The other eight on the bench received a unanimous “well qualified” at the time of their nominations.
Obama is right.
Ah, the ABA. Isn’t that the organization that is on record as saying Roe was rightly decided? Oh yeah, legal geniuses that crowd.
Depends on what you mean.
English is my mother tongue. When I say I agree with Senator Obama’s statement that Thomas was not “a strong enough jurist or legal thinker at the time for that elevation,” I mean that I agree that Thomas was not a strong enough jurist or legal thinker at the time for that elevation.
I’m unclear how you can be confused that I am asserting that “he isn’t a strong enough jurist or legal thinker today” or that I am asserting that I “think Thomas is not a capable lawyer,”.
Anyway, I will stand by my original assertion.