Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum2 Comments Published by James August 17th, 2008 in Antonin Scalia, Barack Obama, Clarence Thomas, David Souter, John Paul Stevens, John Roberts, Judges and Justices, Ruth Bader Ginsburg, Samuel Alito, Stephen Breyer, Supreme Court
Earlier tonight, Senators John McCain and Barack Obama joined Pastor Rick Warren at his California megachurch for an event pegged as “The Saddleback Civil Forum on the Presidency.” The interviews, each an hour in length, were separated by thirty-six tense seconds in which the presumptive nominees shared the stage (and an awkward hug [video here!]). Warren asked both men the same questions, about faith and freedom, sacrifice and glory, about abortion, and stem cells, and taxes. And then he threw something of a curveball, first to Senator Obama:
WARREN: Which existing Supreme Court Justice would you not have nominated?
OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.
And then to Senator McCain:
WARREN: Which existing Supreme Court Justices would you not have nominated?
McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.
The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations
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….some of the worst damage has been done by legislating from the bench.
A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:
WARREN: How about John Roberts?
OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.
WARREN: All right. When I pick this up it means –
OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.
Also receiving a shot out from Obama was Justice Scalia:
OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.
I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.
But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.
For those intrested, the full transcripts from the event are available here.
UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.