by Mark Silva
"This is going to be, I think, one of the most consequential decisions of the next president,'' then-Sen. Barack Obama said of Supreme Court appointments during his third and final campaign debate with Republican rival Sen. John McCain.
"It is very likely that one of us will be making at least one and probably more than one appointments, and Roe versus Wade probably hangs in the balance,'' Obama said at the time - asserting, as did his Republican rival, that he would not apply any "litmus tests'' to nominees for the high court.
Yet he made it clear in that debate - the only one of the three during the general election campaign where the question of Supreme Court nominations came up - what he would expect of any judge whom he seated on the court.
"This is going to be an important issue,'' he said of the abortion-rights debate. "I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.''
The issue probably won't "hang in the balance'' in the first nomination that Obama now faces, replacing the retiring Justice David Souter this summer. Obama will likely pick a judge of the same temperament of the narrow 5-4 majority of the court that stands in the way of repealing Roe v. Wade. With the next appointment, however, the president will have a chance to solidify that majority.
Yet the position of Obama's nominee on abortion rights probably will give challengers one of the clearest targets they have for opposing that candidate. That concern about "real-world folks'' is one of those questions of "empathy'' that critics call "code'' for an activist judge.
The ability of either Obama or McCain to shape the court, potentially for the next few decades, was one of the great matters at stake in the election of 2008.
This is what they said about it, when debate moderator Bob Schieffer asked the question during the final debate, at Hofstra University, on Oct. 15.
SCHIEFFER: All right. Let's stop there and go to another question. And this one goes to Senator McCain. Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't.
Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain?
MCCAIN: I would never and have never in all the years I've been there imposed a litmus test on any nominee to the court. That's not appropriate to do.
SCHIEFFER: But you don't want Roe v. Wade to be overturned?
MCCAIN: I thought it was a bad decision. I think there were a lot of decisions that were bad. I think that decisions should rest in the hands of the states. I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test. Now, let me say that there was a time a few years ago when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge and the Democrats were blocking in an unprecedented fashion.
We got together seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative judges."
I voted for Justice Breyer and Justice Ginsburg. Not because I agreed with their ideology, but because I thought they were qualified and that elections have consequences when presidents are nominated. This is a very important issue we're talking about.
Senator Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.
I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.
SCHIEFFER: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?
MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.
SCHIEFFER: All right.
OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to provide fairness and justice to the American people.
And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.
Now I would not provide a litmus test. But I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue and it is a moral issue and one that I think good people on both sides can disagree on.
But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote.
"So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.
I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.
For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently.
We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.
I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want."
Comments
This site is so useful site
Posted by: Flowers | May 4, 2009 8:08 AM
Finally, someone in the White House with some common sense, instead of corporate sense !! We need a Supreme Ccourt justice who has his eyes on the needs of the individual's rights, instead the special interests' " rights " !! I am sure the Rabid Right will make a fuss with any candidate, President Obama selects. Let the Republican fun begin, which means, the lies, the distortions, the character-assassinations, and their specialty, the name-calling !! Let's see if they can come up with, any newly coined boogeymen !!
SUPPORT OUR TROOPS, BRING THEM HOME, ALIVE AND WHOLE. NOW.
Posted by: Don Fitzgerald, America | May 4, 2009 8:59 AM
Souter was a big dissapointment on the bench.
"We may with reverence say, that our Creator designed men for society, because otherwise they cannot be happy. They cannot be happy without freedom; nor free without security; that is, without the absence of fear; nor thus secure, without society. The conclusion is strictly syllogistic—that man cannot be free without society. Of course, they cannot be equally free without society, which freedom produces the greatest happiness."
--John Dickinson, Letters of Fabius, 1788
Posted by: Joe Lunchbox Lawyer | May 4, 2009 9:15 AM
Common sense will dictate a selection of a judge that does not legislate from the bench but uphold the laws as they are written. How simple is that?
The Democrats specifically liberals have added a litmus test to their selection criteria for Supreme Court judges and that is just plain wrong. Litmus tests are way to subjective since each of these politicians add a supposition question that is usually unfair unless the entire case is presented before the judge to make a clear and concise determination. It is unfair to ask a litmus question that basically has no real answer other than "it depends on the case presented as to how I will decide." However, most of these nimrods will demand a yes or no answer when indeed these liberals do not want a case history but an answer to a question that cannot be answered without briefs!
What I saw in their (liberal lawyer politicians) behavior before Roberts, Alito, Scalia, and Clarence Thomas was appalling, unethical, and partisan. What happened to fairness in upholding laws and decisions made by the highest court of the land?
I see Obama as choosing a judge that will legislate from the bench and have a track record of doing so. I do not se him picking a judge based on upholding laws as they are written and determined. Replacing Souter really by Obama is no big deal since he chose to legislate from the bench out of ignorance of the constitution which they are sworn to protect.
We need judges who will uphold the laws, constitution and decisions based on law and constitution plain and simple. Now that litmus testing is added and nominees are subjected to harsh besmirching by rival politicians just because they cannot answer on Roe v. Wade or whatever benchmarked decisions come before them is just out of line. The nominees should be chosen solely ontheir record in upholding laws, determining laws already on the books, and making sure that the cases either violate the law or not. It is up to lawmakers to change laws and not count on Supreme Court judges to legislate what polticians have failed in their attempts.
Posted by: Joe Lunchbox Lawyer | May 4, 2009 9:39 AM
The Democrats specifically liberals have added a litmus test
Posted by: Joe Lunchbox Lawyer | May 4, 2009 9:39 AM
Yes indeed...the ol' "litmus" test. A democrat thing for sure. That would be why McCain couldn't choose who he "wanted" for VP running mate and "had" to choose a pro-life Palin. Joe is that a liquid lunch?
Posted by: bill r. | May 4, 2009 10:14 AM
Posted by: Joe Lunchbox Lawyer | May 4, 2009 9:39 AM
Guess what ? Your post spells out your "litmus test" for judges.
Posted by: Reagent | May 4, 2009 10:37 AM
Well, rhetoric gets everyone in trouble finally, even the best intentioned.
"Real world folks"????
That's so Sarahhh Palinesque.
She was glad to be with "real Americans" in Alassippi or whereever it was, remember?
It would be best just to shut up about criteria and litmus tests and all that. Whatever is said, will be immediately run through O'Hatch's antonym dictionary for his counterattack.
Arguably Souter was the best pick in the the last 20 years, precisely because he was the "stealth candidate".
He hadn't made up his mind on a lot of the issues.
Meaning, he had an open mind.
He was very well prepared. Rhodes Scholar, Harvard Law, state attorney general.
But had not made it his business to be an ideologue.
He didn't "fool" anyone in the confirmation.
Bork got the dork because he was an ideologue and correctly perceived as such.
So, a non-ideologue was needed to avoid another Bork-style confirmation fight.
And Souter was that non-ideologue.
And he performed just the way judges are supposed to perform.
Posted by: ornery | May 4, 2009 11:07 AM
"So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. ~ the great and immensely popular Barack Obama, U.S. President
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An Outstanding Judicial Record
Good, desirable, criteria.
- Intellect
Everybody could stand to benefit from some intellect every once in awhile.
- A Sense Of What Real-World Folks Are Going Through
Who are the Real-World Folks of which the great Obama speaks? Is anyone living in a Red State a Real-World Folk? Are folks who don’t have an issue with the First Amendment, the Second Amendment, or the Tenth Amendment, Real-World Folk?
Here’s a concept. Why not put a little weight on finding someone who is so damn pleased to be a part of the Judiciary and so honored to be appointed to the Supreme Court of the United States, that they only seek to uphold the Constitution of the United States.
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 3:09 PM
Here’s a concept. Why not put a little weight on finding someone who is so damn pleased to be a part of the Judiciary and so honored to be appointed to the Supreme Court of the United States, that they only seek to uphold the Constitution of the United States.
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 3:09 PM
That really would be a change from the Bush appointments, wouldn't it?
Posted by: Nel | May 4, 2009 4:07 PM
"...the lies, the distortions, the character-assassinations, and their specialty, the name-calling !!..."
SUPPORT OUR TROOPS, BRING THEM HOME, ALIVE AND WHOLE. NOW.
Posted by: Don Fitzgerald, America | May 4, 2009 8:59 AM
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Don Fitzgerald,
Yes, about that "character assasination", etc. etc. I will NEVER forget Pat Leahy and the senior senator from Massachusetts doing that very exact thing to Samuel Alioto. Mrs. Alioto sat behind him and just cried.
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 5:30 PM
That really would be a change from the Bush appointments, wouldn't it?
Posted by: Nel | May 4, 2009 4:07 PM
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It would be a quantum change from what a liberal democrat would be committed to doing.
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 5:35 PM
*********
Posted by: Joe Lunchbox Lawyer | May 4, 2009 9:39 AM
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Most excellently stated, but good luck with trying to present any kind of rational argument to the liberals that are likely to surface here. If Tyranny was followed by a parenthetical D, their best name callin' efforts would be committed to defending that.
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 5:47 PM
* * * * *
Posted by: Django - N Exile somewhere in/around the 30th Parallel | May 4, 2009 5:47 PM
.
But it already is, Django. It already is.
Posted by: John W. | May 4, 2009 7:46 PM