Posted by Jonathan Adler:
The Candidates and the Court:
http://volokh.com/archives/archive_2008_10_05-2008_10_11.shtml#1223604141
On Tuesday, the WSJ ran two articles by Jess Bravin examining the
approach to judicial nominations likely to be taken by each of the
major presidential candidates. The articles provide a good
side-by-side comparison of the candidates.
In [1]"Barack Obama: The Present Is Prologue," Bravin writes:
On legal matters, including Supreme Court appointments, an Obama
administration would likely be shaped by its leader's strong
convictions on constitutional law. As in other areas, Sen. Obama's
jurisprudence points to a change from the "strict constructionist"
philosophy advocated by Republican presidential contenders from
Richard Nixon to John McCain.
Precedents, text and other legal tools can provide a just outcome
in "95% of the cases," Sen. Obama said before voting against
confirming chief-justice nominee John Roberts. But for the "truly
difficult" cases that remain, the "last mile can only be determined
on the basis of one's deepest values, one's core concerns, one's
broader perspectives on how the world works, and the depth and
breadth of one's empathy." . . .
"I appreciate the temptation on the part of Justice Scalia...to
assume" that if the 18th century text is followed "without question
or deviation...all good will flow," Sen. Obama writes in his book,
"The Audacity of Hope." "Ultimately, though, I have to side with
Justice Breyer's view of the Constitution -- that it is not a
static but rather a living document."
As a result, Sen. Obama's advisers say, he may look beyond the
courts for candidates to lawyers with practical, political or
scholarly experience. Names mentioned in Democratic circles include
federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval
Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard,
Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale
Law School.
In the other story, [2]"John McCain: Looking to the Framers," Bravin
writes:
In judicial nominations, Sen. McCain is likely to rely on advice
from the Republican legal establishment, which has helped pull the
court firmly to the right in recent years. Backers say that as
president, Sen. McCain would use his "gut instinct" to make the
final cut among qualified candidates.
"He's going to count on his advisers, people like Ted Olson [the
litigator who won the Bush v. Gore case], to tell him that the
person has a good law background," says Sen. Kyl. Sen. McCain
likely "will be looking more at the kind of character the
individual has."
Possible candidates could include federal appeals judges Janice
Rogers Brown, Brett Kavanaugh, Priscilla Owen and William Pryor,
former judge J. Michael Luttig and Paul Clement, a former Bush
administration solicitor general. . . .
Sen. McCain's emphatic pledge to name committed, closely vetted
conservatives to the bench aimed to assuage worries among
conservative intellectuals that, faced with an opposition Senate,
Sen. McCain might compromise with Democrats on judicial
nominations.
The stories also contain some other interesting tidbits. for
instance, Bravin reports that Senator McCain has pair relatively
little attention to judicial nominations in the past, even
deferring to Arizona's other Senator on district court judgeships.
Bravin also cites Douglas Kmiec, a former Romney advisor, as among
those supporting/advising Obama on legal issues.
References
1.
http://online.wsj.com/article/SB122333844642409819.html?mod=article-outset-box
2.
http://online.wsj.com/article/SB122333824151509789.html?mod=article-outset-box
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