"Future Supreme Court Appointments Matter"

Despite his background as a lawyer and law lecturer at the University of Chicago, Barack Obama has said little from the stump about legal issues, particularly what sort of justices he’d want on the Supreme Court, whose makeup is likely to be shaped for decades to come by the next president’s nominees.

John McCain, who has no legal background and who generally has not made matters of jurisprudence one of his signature issues in the Senate, has recently been more aggressive in offering his views on the law while campaigning.

“This is mostly about base politics,” said Thomas Goldstein, who heads the Supreme Court practice at Akin Gump Strauss and a founder of the well-read SCOTUSblog. “Conservatives have always cared more about judges — have always recognized their lifetime appointments and their power much more than Democrats and progressives.”

“McCain wants to appoint people like [Bush nominees] Roberts and Alito,” Harvard University law professor and informal Obama adviser Cass Sunstein told Politico. “If you want a Court that would rethink Roe and defer to the president on large questions of presidential power, that’s more likely with McCain.”

But even if their impact is not front page news now, Supreme Court nominees will be a defining issue for the next president, since six of the sitting justices will be 69 or older when the new president takes office. “If the next president serves eight years, he’ll have the potential to cast a lasting mark on Supreme Court, so you’ll see more talk in the coming months,” said Robert Alt, deputy director of the Center for Legal and Judicial studies at the conservative Heritage Foundation. “There are other things that will press people on a daily basis like gas prices. But judges will be the big-ticket, long-range issue.”

Whatever his reasons, Obama had mostly shied away from discussions of legal matters. Judicial nominations are not part of his stump speech, and even when opportunities have arisen, he has mostly found ways not to elaborate on his support for nominating Justices who would oppose overturning Roe.

Thus far, legal activists on the left have held their fire about Obama's agreement with conservatives on the Court's death penalty and gun control rulings. Nan Aron, President of the Alliance for Justice, said that she is not concerned by the fact that Obama sided with conservatives on the death penalty and gun control decisions. "I think a more accurate predictor is to look at the votes he’s cast so far,” she said. “He cast 'no' votes on Roberts and Alito, which offers a very sharp contrast with John McCain. McCain wants to appoint more justices like Alito and Roberts, while Obama wants to appoint more justices like Earl Warren."

Earl Warren was Chief Justice during one of the most turbulent times in our nation's history. During his tenure, the Court dealt with controversial cases on civil rights and civil liberties and the very nature of the political system.

The Brown case was the first in a long string of judgments that marked a more active role for the Supreme Court of the United States in American life. The Warren Court took on the defense of individual rights as no court before it. Warren considered this a proper role for the courts; he never saw the role of the judiciary as passive, or somehow inferior to the other two branches of government.

Warren's opinion in Brown has been criticized for its lack of constitutional analysis. In Brown the key finding does not appeal to precedent or to the history of the Fourteenth Amendment. Rather there is an emphasis on common sense, justice, and fairness that can be seen in Warren's reliance on social science and psychological research. Warren was not antigovernment, but he believed that the Constitution prohibited the government from acting unfairly against the individual. In taking this position, he carved out a powerful position for the Court as a protector of civil rights and civil liberties.

     Among the many important and pressing issues that on the minds of American voters as they listen to the policies, promises and pandering of the two presumptive party nominees for President in '08, the appointments of possibly three to six new Supreme Court Justices by the next President is not one of these important and pressing issues. As I see it, next to getting out of Iraq, these future Supreme Court appointments are very important. Supreme Court Justices, like Congressman, are prone to political partisanship in their decisions from the bench. Currently , in the present Supreme Court there are four Justices (Scalia, Roberts, Alito and Thomas) that are far right conservatives inclined to trample upon the civil rights and liberties of American citizens. If John McCain is elected President he will appoint more Justices with the same ideology and partisanship, in my opinion. Barack Obama is more likely to appoint more progressive Justices that will protect the Constitutional civil rights and liberties of American citizens. Something else to think about in choosing between the two flawed candidates running for President in '08. Future Supreme Court appointments matter.

tags: barack obama  john mccain  supreme court  politics  takebackamerica  us  president  2008  america  obama  mccain  

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