“As for the appointment of Supreme Court justices, it seems safe to say that both candidates will be shamelessly partisan. McCain will make more of an effort to cloak his decision making behind the rhetoric of activism and restraint. Obama will simply choose individuals who hold his own views, without apology. With a Democratic controlled Senate, he will not even have to pretend that some set of objectives (sic) qualifications are guiding his decision making.”
The quote comes from a blog featuring Supreme Court news and commentary that’s visited mainly by lawyers with a professional interest in such matters. This particular remark popped up in a series of back-and-forth posts in which participants traded lawyerly views — and sometimes jabs — about the sort of people Obama and McCain would nominate for the court.
Conservatives said predictably conservative things. Liberals repeated familiar liberal themes. For my money, the most refreshing remark was this one. It underscores the fact that either man could be expected to select Supreme Court nominees not on the basis of lofty constitutional theory but by the result-driven criteria that usually underlie such choices — nominees, that is, who they expect will give them the kinds of decisions they and their ideological allies desire.
And that means — what? There was much to be learned from their responses to a question by evangelical leader Rick Warren during his pre-convention candidate forum. Which current members of the court, Warren asked McCain and Obama, would they not have nominated if they’d been president?
McCain mentioned four: Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Obama named three: Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. The four on McCain’s hit list are the court’s liberal bloc. Obama’s three are, not surprisingly, conservatives. (It’s hard to see, incidentally, why he didn’t add Justice Samuel Alito to his list, since as a senator Obama voted against Alito’s confirmation, as he also did that of Roberts.)
Conspicuously missing from both lists was the name of Justice Anthony Kennedy. Presumably this is because Kennedy, the court’s current swing voter, has shown himself capable of coming down on either the liberal or conservative side, depending on the issue.
The practical import all this has is most easily explained by taking the abortion issue as an illustration. Abortion plainly isn’t the only big question likely to come before the Supreme Court at some point in the not so distant future, but it does shed especially clear light on the practical consequences that changes in the court’s membership could produce during the next several years.
Obama, who says he wants judges with “empathy,” can be expected to name people who he anticipates will uphold Roe v. Wade, the Supreme Court’s original 1973 decision that legalized abortion. Indeed, in his commitment to legalized abortion, Obama is critical even of the Supreme Court’s 2007 decision upholding the federal ban on the grisly “partial-birth” procedure. McCain is harder to read, but his use of the code language of “strict construction” to describe the kind of people he’d nominate suggests that he would lean to jurists who favor overturning Roe v. Wade or at least to placing meaningful restrictions on abortion — for example, by limiting the grounds to rape, incest, and maternal life and health.
These are scarcely academic questions. The Supreme Court starts a new term October 6. November 4 is election day. Whoever the next president is, he’ll almost certainly play a key role in shaping the court’s direction for years to come.
