Legal News

Debating the Future of the High Court

By Dan Slater

Yesterday, speaking to a gathering of the Federalist Society, President Bush, according to the New York Times, reminded Americans that he has lived up to his promise to appoint more judges like Thomas and Scalia. He also — wrote the NYT — made “the case, if only obliquely, that so would John McCain.”

Members of the U.S. Supreme Court sit for a group portrait, March 3, 2006. (AP Photo/J. Scott Applewhite)

Indeed. Back in May, during his Wake Forest speech on the judiciary, McCain, in what appeared to be a clear embrace of states’ rights and a jurisprudence of restraint, expressed disdain for federal judges who “issue rulings and opinions on policy questions that should be decided democratically.” He said Roberts and Alito “would serve as the model” for his nominees.

In today’s WSJ, Supreme Court reporter Jess Bravin, in two articles (here and here), takes a look at how the judicial philosophies of McCain and Barack Obama could shape the future of the Court.

The exercise is more than a mere parlor game. As Robert Barnes points out in the Washington Post, Obama, supported by a strongly Democratic Senate, could be presented with three openings during his first term: Justices Stevens, 88, Ginsburg, 75, and Souter, 69, might step down in the next four years if Obama were elected. (On the other hand, justices typically don’t leave court when they’re going to be replaced by an ideological foe.) But this also means that, given the relative ages of the justices — Scalia, at 72, is the oldest conservative — the potential for actually shifting the court on issues like abortion and affirmative action, rather than simply switching out one liberal or one conservative for another, could go to McCain.

The WSJ’s Bravin reports that while McCain, in recommending candidates for home-state judgeships, has historically deferred to Arizona’s junior senator, Obama, a former Con law prof, possesses a deeper understanding of constitutional history.

Though some might prefer less knowledge to a living Constitution. Obama has “a vision of the Supreme Court that I think is deeply wrong,” said Edward Whelan of the Ethics and Public Policy Center and a former Scalia clerk. “I see that as a graver danger than someone who might be less knowledgeable about the court.”

Full post as published by Law Blog - WSJ.com on October 07, 2008 (boomark / email).