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Obama, McCain, and the court

Obama, McCain, and the court

Posted: Thursday, August 21, 2008 8:47 pm
By: Douglas Cohn and Eleanor Clift

By DOUGLAS COHN and ELEANOR CLIFT WASHINGTON — For Hillary diehards angry over the way their candidate was treated in the primaries and say they will vote for Sen. John McCain, R-Ariz., two words should give them pause: Supreme Court. The nine justices are evenly split between four conservatives and four progressives with a single swing vote to break the tie, Justice Anthony Kennedy, a Reagan appointee who more often than not tips the balance to the conservative side. If McCain wins the presidency, he would cement the conservative majority on the Court. Justice John Paul Stevens at age 88 is the oldest member of the Court and the most progressive. His retirement alone would transform the Court in a McCain administration. Stevens has shown no signs of slowing down or flagging mentally, but he is the second oldest justice to serve, second only to Justice Oliver Wendell Holmes, Jr. who stepped down after he turned 90. Pastor Rick Warren of the evangelical Christian Saddleback Church asked McCain and Sen. Barack Obama, D-Ill., in back-to-back forums last weekend which of the current members of the Supreme Court they would not have nominated. Obama answered without hesitation Clarence Thomas. “I don’t think he was a strong enough jurist or a legal thinker at the time for that,” Obama explained, adding that he “profoundly disagrees” with his interpretation of the Constitution. Thomas was only 43 when the first President Bush appointed him amidst a storm of controversy, opening the door to a long tenure on the Court as a reliable conservative vote. The ideological balance on the Court is intertwined with age. The progressives are getting on in years. The two Clinton appointees, Justice Ruth Bader Ginsburg and Justice Stephen Breyer are 75 and 70 respectively. Justice David Souter, just shy of 69, appointed by former President Bush and thought to be a conservative, surprised Court-watchers when he turned out to be a strong principled liberal. With the exception of Justice Antonin Scalia, who is 72 and the leader of the Court on the Right, youth favors the conservatives with Chief Justice John Roberts, 53, currently the youngest member of the Court. Justice Samuel Alito, 58, who along with Roberts was appointed by President Bush, rounds out the youth movement on the venerable Court. A glance at the actuarial tables underscores how critical it is for a President Obama to hold back the conservative tide or conversely for a President McCain to consolidate the gains made by Bush. The Saddleback Civil Forum on the Presidency offered each candidate an opportunity to expound on his views on a variety of cultural and social issues. The host Rick Warren made a point of saying the candidates are his friends, they both care deeply about America, and they are both patriots. Where they differ is in their worldview, and nowhere is that contrast more sharp than in the people they would put on the Supreme Court. Asked which of the current members he would not nominate, McCain named all four justices on the progressive side: Ginsburg, Breyer, Souter and Stevens. “This nomination should be based on the criteria on a proven record of strictly adhering to the Constitution and not legislating from the bench,” McCain said, relying on the familiar rhetoric of opposing judges the Right considers “activists.” If McCain wins the presidency, he would be somewhat constrained by a likely increase in Democrats in the Senate. Still, it should not be lost on voters that the next president holds the future of the Court in his hands along with the future of key rulings like Roe v. Wade. With Independents likely to decide the outcome in November, McCain’s views on prospective nominees may prove more of a stumbling block than he would like. Published in The Messenger 8.20.08

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