Wednesday, October 15, 2008

More on Judicial Nominations in the Presidential Election

Senators Obama and McCain again tonight addressed judicial nominations, this time in response to a question about overturning Roe v. Wade.  There little, if any, new material here--see my previous post on the candidates' positions under Interpretation--but the exchange is nevertheless interesting.

McCain addressed his position on the proper role of the Senate (to vote for nominees based on qualifications, not ideology), his position on Roe (that it was wrong, and that it is an issue for the states), and his ideal justice (the "best [person] in the United States of America who [has] a history of strict adherence to the constitution and not legislating from the bench").

Obama said that the U.S. constitution contains a right to privacy, and that it--no less than the First Amendment--cannot be subject to "state referendum."

Both agreed that a litmus test for candidates to the Supreme Court would be inappropriate.

This latest debate gives us yet another chance to contextualize discussions of federalism, constitutional interpretation, the role of judges in our constitutional system, and, of course, abortion.

The relevant portion of the transcript follows; find the audio and video on c-span (or any other widely available source) at 1:06.25.


MR. 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.

SEN. MCCAIN: I would never and have never, in all the years I've been there, impose a litmus test on any nominee to the court. That's not appropriate to do.

MR. SCHIEFFER: But you do -- you do want Roe v. Wade to be overturned.

SEN. MCCAIN: I think it was a bad decision. I thought it was a-- I thought it was a bad decisions. I think there was a lot of decisions that were bad. I think that the decision should rest in the hands of the states. I'm -- 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 judge -- 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 I -- that's what I will do. I will find the best people in the world -- in -- in the United States of America who have a history of strict adherence to the Constitution and --

MR. SCHIEFFER: But even if it was someone --

SEN. MCCAIN: -- not legislating from the bench.

MR. SCHIEFFER: Even someone who had a history of being for abortion rights, you would consider them.

SEN. MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade -- that would be a part of those qualifications. But I certainly would not impose any litmus test.

MR. SCHIEFFER: All right.

SEN. 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 -- 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 -- is that women, in consultation with their families, their doctors, their religious advisors -- are in a 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 in the -- any more than, you know, our First Amendment rights are subject to state referendum, any more than, you know, many of the other rights that we have should be subject to, you know, 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-word -- -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 -- the court has to stand up if nobody else will, and --

MR. SCHIEFFER: All right.

SEN. OBAMA: -- and that's the kind of judge that I want.

MR. SCHIEFFER: Time's up.

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