October 7, 2008
According to yesterday's New York Times, the McCain and Obama campaigns have turned to the issue of judicial appointments. And with President Bush delivering a speech yesterday on his judicial philosophy, the time seemed right to say something about the issue of judicial appointments in the presidential campaign.
These materials give us an opportunity to hold political rhetoric in the campaign against constitutional theory in our classes and explore with our students how they compare. For example, I plan to assign these materials to my Con Law I class (structure), and ask my students to answer these questions:
1. Do the candidates' positions represent commitments to a clear, consistent approach to constitutional interpretation (and if so, which one(s)), or merely to judicial nominees who will advance their political agendas? Or are these one in the same?
2. Do certain methods of constitutional interpretation align consistently with the political right? Do others align consistently with the political left? Can you point to an issue or a case where a commitment to a particular method of constitutional interpretation seems to have resulted in strange political bedfellows? Can you point to an issue or a case where a politician or judge seems to have, um, "loosened" their commitment to a particular method of constitutional interpretation in order to maintain fidelity to their political commitments? Based on our studies, what issue(s) give rise to a tension between your own favorite method of constitutional interpretation and your own preferred policies? How do you resolve this tension?
3. Can you point to opinions that we've studied that reflect the candidates' positions on judicial nominations? Can you point to opinions that reflect Senator McCain's views on separation of powers and federalism (since he specifically discusses those issues in his statement of "strict constructionist philosophy," linked above)? How about opinions that reflect Senator Obama's empathy and heart (since he specifically identifies these traits as desirable for justices who are not merely umpires in a game, but who rule on issues of life and death)?
Let us know how you're using this issue in your classes.
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