Implications of 08 Candidates on the Judiciary

Despite the fact that the primary battle for the Democratic nomination is still ongoing, several pundits have turned their attention to the future, ignoring even the upcoming general election season as they look ahead to what we can expect from each of the potential nominees should they ascend to the presidency. Among the issues that are being examined is the potential for Supreme Court vacancies during the next President’s term and how these vacancies would be filled by Senators McCain, Clinton, and Obama should one of them have the opportunity to nominate a judge (or multiple judges) to the High Court.

Since becoming the presumptive nominee for the Republican party, Senator John McCain has been waging an uphill battle with the more conservative wing of his party as he has fought to convince Republicans that he will champion the party’s causes if elected President. As Mr. McCain addressed the influential Conservative Political Action Conference in February of this year, he promised “to nominate judges who have proven themselves worthy of our trust that they take as their sole responsibility the enforcement of laws made by the people's elected representatives, judges of the character and quality of Justices Roberts and Alito, judges who can be relied upon to respect the values of the people whose rights, laws and property they are sworn to defend.” Though many were skeptical of Mr. McCain’s words, it appears that the concerns of many conservatives concerning a potential McCain Supreme Court are unfounded. Despite his oftentimes middle-of-the-road voting record in the Senate, Mr. McCain boasts a firmly conservative voting record when it comes to Supreme Court nominees. Indeed, throughout his lengthy career as a Senator, Mr. McCain has voted time and time again to confirm Republican nominees, from the recent Justices Samuel Alito and John Roberts to President George H. W. Bush’s controversial nominations of Clarence Thomas and (the failed) Robert Bork. In fact, according to journalist Doug Kendall, Mr. McCain has voted to confirm every Republican judicial nominee throughout his tenure in the Senate. Thus it appears that the Senator is serious about maintaining the standard of judicial restraint on the High Court as he reiterated on a recent episode of “Hannity and Colmes” that his favorite justice remains Chief Justice John Roberts because “the important thing is nominate judges who have a strict interpretation of the Constitution of the United States.”

Conversely, it appears that a Supreme Court laden with judges nominated by Senator Barack Obama would likely swing in the opposite direction. Per Edward Whelan of The Weekly Standard, “[Senator Obama] has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators.” For as ardently as Mr. McCain has supported conservative nominees to the bench, Mr. Obama has opposed them. When discussing the type of qualities that he looks for in a justice, Mr. Obama declared, “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 criterion by which I'll be selecting my judges.” It is clear then that Mr. Obama subscribes to the judicial activism approach of interpreting the Constitution as being a “living document.” This notion has been reinforced in Mr. Obama’s voting record, even as he has encountered opposition within his own party as he has worked to block numerous appointees by current President George W. Bush. It would seem then that should Mr. Obama secure the presidency, he would look to appoint judges that embrace his philosophy that the Constitution should, in his own words, “be read in the context of an ever-changing world.”

Senator Hillary Clinton seems to hold a view similar to that of Mr. Obama concerning judicial nominees. Though she has not publicly spoken as much as Mr. McCain and Mr. Obama have on matters related to federal and Supreme Court judges, Mrs. Clinton has come out and proclaimed that, "as President, I will promote policies and judicial nominees who will uphold our constitutional liberties. I will lead us on a different course, one that affirmatively promotes women's health and well-being." Going along with this, it appears that more than anything else, Mrs. Clinton feels strongly about 1963’s landmark Roe v. Wade decision as she has stated, “when I'm President, I will appoint judges to our courts who understand that Roe v. Wade isn't just binding legal precedent, it is the touchstone of our reproductive freedom, the embodiment of our most fundamental rights, and no one - no judge, no governor, no Senator, no President - has the right to take it away.” Like her colleague Mr. Obama, Mrs. Clinton also voted against confirming Justices Alito and Roberts to the Supreme Court. Should Mrs. Clinton assume the presidency and follow a pattern similar to that of her husband, President Clinton- who nominated judicial activists Ruth Bader Ginsburg to the Court in 1993 and Stephen Breyer in 1994- or should Mr. Obama become president, it is likely that many Court rulings would shift towards adopting a “living document” view of the Constitution.

Regardless of who becomes the next president, he or she will likely have the opportunity to nominate a new justice to the Supreme Court. With five justices currently falling between the ages of 69 and 75 years old, and Justice John Paul Stevens (currently the second oldest judge to ever serve on the High Court, second only to Oliver Wendell Holmes, Jr.) nearing age 88, it seems imminent that the next president will face at least one vacancy on the Court while in office. Furthermore, whoever becomes the next president is likely to be in a position to alter the current balance that exists within the Supreme Court. It will be interesting to observe what unfolds, particularly as the fine line between politics and the judiciary grows increasingly blurred.