Questions For The Candidates

Barack Obama, John McCain and the Court; courtwatch; debate; supreme court, justice department CBS/AP

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Whenever I summon up the courage to watch the presidential debates I quickly find myself precisely where you are when you decide you have nothing better to do than to watch the spectacle: I find myself wishing I were the moderator so that we could ask the questions.

I know my friend Bob Schieffer is going to do a great job at next week's final debate, but if I ever got the chance …

I wouldn't ask the candidates what they think of O.J. Simpson's conviction late Friday night in Nevada.

I wouldn't ask them to comment upon the silly dispute between environmentalists and the Navy over the use of sonar near whales in the Pacific Ocean, a Supreme Court conflict where the "facts" haven't even been established.

I wouldn't ask them about Nancy Grace or Judge Judy, I promise.

Instead I would ask each candidate to explain what he thinks about the latest reports from Salon.com that President Bush himself told his old Texas pal (and then-White House counsel) Alberto Gonzales to travel to Attorney General John Ashcroft's dark hospital room to pressure the ailing (and resistant) AG into approving illegal domestic warrantless wiretapping.

I would like to hear each candidate explain what steps he'd take to ensure that such an ugly, unconscionable thing would not occur in his presidency.

I would ask Barack Obama to give us examples - name us names - of the sorts of judges he would appoint to the United States Supreme Court. We already know from John McCain that he, like the current president, is looking for someone in the Justice Thomas/Justice Scalia mode. But who are Obama's legal role models? Justice Brennan? Justice Marshall? Justice Douglas? Whom? Which reincarnations of which two former Justices would he like to see?

I would ask John McCain what he thinks of this week's Los Angeles Times story that the Pentagon was warned that its torture techniques were literally driving "enemy combatants" crazy? Remember, even though the candidate was himself tortured, he agreed to allow the executive to continue to engage soto voce in torture tactics during the interrogation of terror suspects.

But I'd also like to hear from Barack Obama what he thinks of the fact that terror mastermind Khalid Sheik Mohammed is making a farce of the military commission proceedings down at Guantanamo Bay, Cuba, especially after Obama voted against the Military Commissions Act of 2006.

I would ask both candidates whether they think it is appropriate for the White House to assert executive privilege over former White House counsel Harriet Miers and former White House political operative Karl Rove with respect to the U.S. Attorney scandal. I would like them to explain to me and everyone else how we are supposed to get to the bottom of the Justice Department's worst crisis in 50 years without that testimony. No attack-ad sound-bytes there, I bet.

I would ask both candidates what they think of the plight of the Chinese Uighurs, apprehended in the war on terror and held by our forces against their will for years without charges as "enemy combatants." Seventeen of them were ordered released earlier this week by a federal district judge before an appellate court then stayed their release.

I would like to hear the candidates tell me what the over-under is on how many non-terrorists may be improperly detained by our forces before it's a long-lasting stain upon our moral standing in the world.

I would like to hear candidate McCain (from Arizona) explain to me precisely why he is right when he rails against "judicial activism" (he says "activist" judges are ruining the law) and the late Chief Justice of the United States, William H. Rehnquist (from Arizona) and former Supreme Court Justice Sandra Day O'Connor (from Arizona) are wrong when they say the charge is nonsense. Either O'Connor or McCain is right about "judicial activism," and I'd like to hear him explain why she isn't.

I would like to hear what the candidates think of the death penalty in Texas, where a man still stands on death row despite credible evidence that his trial judge and prosecutor were having a romantic affair during his trial. I would like to know that they think of capital punishment in Georgia, where a man still stands on death row despite the fact that seven witnesses against him have recanted, there was no physical evidence linking him to the crime, and there were no eyewitnesses to it.

I would like to hear from McCain and Obama how they plan to ease the serious logjam for judicial positions on the lower federal court level. Too many trial court dockets remain vacant and unmanned because bozos on Capitol Hill either won't nominate (or vote for, depending upon your point of view) decent jurists. Are both candidates willing to turn part of the judicial appointment job over to some sort of non-partisan commission? Or are we destined for even longer lines at the gates of justice?

If I were moderator I would re-play for the candidates the CBS Evening News interview Katie Couric did with Republican vice-presidential candidate Sarah Palin in which Palin was relentlessly unable to identify a single Supreme Court case when asked to name one (other than Roe v. Wade) with which she disagreed. After the tape is played I would like candidate McCain then to explain to me how Palin's answer that day gives him confidence that his running mate could govern if he died or became incapacitated.

I would ask candidate Obama what he thinks about the disproportionate level of black prisoners in our criminal justice system. I would ask him what he hated most about Harvard Law School, and what he likes least in lawyers, and what he would do to make judicial confirmation hearings more productive than they are now.

I would ask McCain if he would nominate a non-judge to the Supreme Court to freshen things up in there.

And I would ask them both, of course, how they would have voted had the 2000 Florida recount case come before them.
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