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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