by James Oliphant
Barack Obama will be interviewed on the NBC Nightly News tonight, part of his Closing Argument Tour--coming soon to a swing-state near you.
In the interview with Brian Williams, Obama explained the criteria he would employ for selecting justices for the Supreme Court. The next president likely could see one, perhaps two, vacancies in the next four years. And in fact, five justices on the court are 70 or older.
Obama suggests that an originalist such as Justice Antonin Scalia need not apply.
Here's an excerpt. Obama's sit-down will be shown in two parts on Thursday and Friday.
WILLIAMS: Senator, a question about the Supreme Court. Everyone running for President always says, especially on the narrow issue of abortion rights-- no litmus test. It-- it's said on both sides of the issue. And if that's true, if you're not going to call a future Justice into the Oval Office, if you're successful in this endeavor and bring up the subject, how then do you also avoid surprises? I don't think-- George H.W. Bush, 41, ever dreamed that in Justice Souter he was appointing a dependable liberal vote.
OBAMA: Right.
WILLIAMS: And as Eisenhower for years called Justice Brennan, his biggest mistake in office. Two surprises that just come to mind.
OBAMA: Right. Well, look, I-- I think that you-- what you can ask a judge is about their judicial philosophy. And as somebody who taught constitutional law for ten years, who actually knows a lot of the potential candidates for Supreme Court on the right as well as on the left 'cause I've taught with them or-- or interacted with them in some way-- I can tell you that-- how a Justice approaches their job-- how they describe the path of interpreting the Constitution I think can tell you a lot.
And so my criteria, for example, would be-- if a Justice tells me that they only believe the strict letter of the Constitution-- that means that they possibly don't mean-- believe in-- a right to privacy that may not be perfectly enumerated in the Constitution but, you know, that I think is there.
I mean, the-- the right to marry who you please isn't in the Constitution. But I think all of us assume that if a state-- decided to pass a law saying, "Brian, you can't marry the woman you love," that you'd think that was unconstitutional. Well, where does that come from? I think it comes from a right to privacy-- that may not be listed in the Constitution but is implied by the structure of the Constitution.
So I can have that conversation with a judge. Now-- if it was a conservative who was listening to me right then says, "See? You know, he wants to-- allow the Court to legislate." Ninety-nine percent of cases the Constitution is actually gonna be clear. Ninety-nine percent of the cases are statutes or congressional intent is gonna be clear. But there are gonna be one percent, less than one percent of real hard cases.
WILLIAMS: Second Amendment last term.
OBAMA: Second Amendment last term is a great example, where the language of the Second Amendment is not perfectly clear. I believe that the Second Amendment is actually an individual right. I think that's the better interpretation. You can make the other argument. And so I can have those kinds of discussions with a Justice without getting into the particulars of-- is Roe versus Wade, as currently outlined, exactly what you believe? Or do you believe that the DC gun law-- should have been overturned? And I think-- Senator McCain, if ends up being-- the nominee-- could have those same conversations as well.
Comments
As long as the abortion issue is settled by judicial decree instead of the democratic process, the SC nomination process will be dominated by it. Obama voted against the confirmation of John Roberts, who was given the highest possible rating by the ABA in terms of qualifications. You would have to painfully naive to swallow Obama's explanation that it was for factors other than apprehension over how Roberts would vote in an abortion case. I just wish Obama would be a little more honest about it. I'm sure his supporters would stand by him if he just admitted the truth - that he would never nominate a judge he thought was a threat to overturn Roe, and it is absolutely a litmus test.
Posted by: Herbie H. | October 30, 2008 5:07 PM
Herbie, that goes for both sides though. Don't just call Obama on that. McCain is never going to say he believes only in justices who are pro-life even thought we all know that's the case. I say both sides should drop the act.
Posted by: Eddy | October 30, 2008 6:48 PM
Obama is suffering from the Half-Bradley Effect. He is not sure how he will vote when in the privacy of the voting booth. ............
http://thefiresidepost.com/2008/10/30/obama-suffers-the-half-bradley-effect/
Posted by: Ohg Rea Tone | October 30, 2008 9:30 PM
Since BO has studied and taught constitutional law, he would know that if Roe v Wade were overturn, then the law returns to existing state law and this could be decided within the state legislature - where the decision s/b decided. Are the libs afraid of putting this issue in front of teh peoples' representatives?
Do you want abortion?
...then be ready to abandon the right of the mother to sue for child support. She made the choice to bring the child into the world, not the man.
.... then be ready to legalize prostitution and drug use. If it's a woman's (or man's) body to choose to do with it as they please, then abolish those laws.
.... then be ready to file only one count of homicide against a defendant when a pregnant woman is murdered.
.... then abandon the right to prosecute a woman who does harm to her fetus by participating in excessive drug and/or achohol use.
Why is those on the left are pro-choice when it comes to abortion, but when it comes to that child's education or one's retirement, they don't want choices - they want the gov'ts way?
Posted by: Terry | October 30, 2008 10:44 PM
The answer to all of this? More agnostics in the government. I think we can all agree that things are too heavily influenced by religious values. I think for things like RvW we need an ethical look at how it stands. People are too passionate about it and we have jumped the fence in a battle between religious belief and personal right. Religion has no place in our government but that is the main determining factor in why most people are against abortion. This is why we need more views that are not drowning in bias.
Posted by: Nathan | October 31, 2008 9:31 AM
Posted by: Terry | October 30, 2008 10:44 PM
Fine Terry, Let's follow more of your logic, shall we?
If Roe V. Wade is overturned be prepared to:
Have the State pick up all expense for raising any child concieved by rape or incest in states which do not allow abortion. The State forced the woman to have that child against her will, why should she pay for it?
Have the State determine which medical procedures any individual may have. You have no right to make that decision with your doctor. Each state will determine what procedures are acceptable. If a State choses to ban all treatments for prostate or testicular cancer, that is their right.
All medical records will be shared with the State and your employer, as you have no right to privacy. The State will use said records to deteremine whether you are allowed to procreate. If the State so determines, you will be issued a procreation license, which will require you to produce offspring within one calendar year. You will have no right to appeal this decision. It is the State's decision whether you bear children, and by what means, not yours.
Tha State will provide each pregnant woman with a list of foods they are allowed to eat, what they are allowed to drink, and what activities they will be allowed to participate in. Any deviation from this list will be punishable by incareration. Any activity which is not proven to optomize the health of the fetus will be strictly banned. A monitor for the State will stay with each pregnant woman 24/7 for the duration of her pregnancy to ensure all regulations are complied with at all times. Any smoking within 100 yards of a pregnant woman will be punishable by life imprisonment without parole.
Posted by: Mary | October 31, 2008 9:52 AM
eddy, first, this is a blog about an Obama interview, not McCain. Second, McCain has waffled on whether or not he supports overturning Roe, so I really have no idea where he stands at any given moment.
Posted by: Herbie H. | October 31, 2008 10:38 AM
"Are the libs afraid of putting this issue in front of the peoples' representatives?"
Posted by: Terry | October 30, 2008 10:44 PM
And when the states made same-sex marriages legal, Republicans screamed bloody murder about how it should never have been allowed and that the federal government should have overruled the states. I think that it is the Republic Party that is afraid to put issues before the American people.
Posted by: BC | November 1, 2008 7:47 PM