Oct. 6, 2008
Supreme Court Hangs On Election
Washington Post: Direction Of Nation's Highest Court Could Be Decided By The Next President
-
Play CBS Video
Video
Supreme Court Back In Session
The Supreme Court is back in session and is becoming a hot button issue this election year. With five justices over 70, the new president may have to select a new justice. Wyatt Andrews reports.
-
Photo
The Supreme Court is currently evenly divided among liberals and conservatives and has a moderate that can go either way. (iStockphoto)
-
CBS Evening News
Presidential Questions
Katie Couric asks Barack Obama and John McCain questions of politics, policy and character.
-
CBS Evening News
Where They Stand
The CBS Evening News provides an in-depth look at the issues facing the 44th president.
There were not many conspicuous tributes to the legacy of President Bush at last month's Republican National Convention, but there was at least one.
It was a campaign button with the words "Thanks, W" across the top and photos of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. beneath the letters.
Conservative legal activists view the two men as remarkable successes in Bush's quest to move the court to the right, and that is part of the reason that, as the court begins its work anew today, public attention is focused less on the cases at hand than on the court's future.
It is a future entirely dependent on whether Sen. John McCain or Sen. Barack Obama prevails in November.
"A President Obama or a President McCain will likely be handed an opportunity to affect the makeup of the Supreme Court that is unprecedented in our history," said Wendy Long, chief counsel for the Judicial Confirmation Network, which was active in generating public support for the confirmations of Roberts and Alito.
Obama, supported by a strongly Democratic Senate, could be presented with three openings during his first term, said Walter Dellinger, a prolific Supreme Court practitioner who was acting solicitor general in the Clinton administration.
He said it likely that Justices John Paul Stevens, 88, Ruth Bader Ginsburg, 75, and David H. Souter, 69, would step down in the next four years if Obama were elected.
"President Obama is going to be able, I think, to name whoever he wishes to the court and have that person confirmed," Dellinger said last week during a discussion at the Institute of Bill of Rights Law at William and Mary Law School.
But whether that would alter the court's basic dynamic is hardly clear.
The court is roughly balanced on important constitutional issues, with four consistent conservatives, four liberals and, in the middle, Justice Anthony M. Kennedy, who leans right on many issues but often joins liberals on some of the court's most controversial decisions.
Replacing liberals Stevens, Ginsburg and Souter with similar-minded justices would infuse the left wing of the court with younger leadership but leave the basic balance intact.
"What you really want to do in reshaping the court is change the median justice," said John McGinnis, a constitutional law expert and professor at Northwestern University. "That changes a lot more votes in the long run than just exchanging one liberal for another or one conservative for another."
To that end, advantage McCain.
The ages of the justices -- Souter is the youngest on the left, and Antonin Scalia is the oldest on the right at 72 -- favor the likelihood that the first opening would come from the liberal side. Stevens, although robust and in good health, is the second-oldest justice in the court's history. The fourth liberal is Justice Stephen G. Breyer.
Replacing one of the liberal justices with a consistent conservative such as Roberts and Alito -- the two McCain has said would serve as models for his picks -- could have far-reaching consequences on issues such as abortion, church-state separation, racial preferences and executive privilege.
But, as other presidents have found, justices take seriously their lifetime appointments and their legacies.
"We know from history that people generally do not leave the court when they're going to be replaced by someone they don't think is very much like them ideologically," McGinnis said.
Even if McCain has the chance to replace one of the liberals, he would face a formidable obstacle if Democrats control more than 55 seats in the Senate.
"It would be impossible for him to get somebody who's extremely conservative confirmed in . . . a Democratic Senate," said lawyer Miguel Estrada, whose nomination to a federal appellate court was blocked by Democrats.
McCain's best bet to appoint someone close to his "ideological ideal point," McGinnis said, would be to nominate a woman or a minority, who might be more difficult for Democrats to oppose. The last three appointments to the court have been white men, and there has never been a Hispanic justice.
Although there is no doubt the candidates would appoint very different people to the high court and lower federal judgeships, they also present a striking contrast in how they might approach the job.
Obama taught constitutional law at the University of Chicago, known for its analytic approach to the law, and would rely on his own thoughts on constitutional theories, said Cass R. Sunstein, a former colleague now at Harvard Law School and an informal Obama adviser.
"He knows these issues," Sunstein said. "I'd be very surprised if he wasn't extremely involved" in choosing nominees," Sunstein said, though he added that he has not had conversations with Obama about the qualities the Democrat would seek in a nominee.
Obama opposed Roberts and Alito and has mentioned Ginsburg, Souter and Breyer as models, although it was unclear whether he was looking only at the current court, rather than past justices, for examples.
Obama said in a speech this year that the court is in agreement much of the time. But on the important constitutional issues that divide the justices, "adherence to precedent and rules of construction will only get you through 25 miles of the marathon," Obama said.
"That 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."
McCain mocked such standards in a speech in May on the role of the judiciary, calling them "vague words" that "attempt to justify judicial activism."
McCain said he would appoint judges "who have a proven record of strict interpretation of the Constitution of the United States."
The Judicial Confirmation Network's Long said McCain's speech offered more details than "any presidential candidate in history" about the qualities he would look for in judges. But the judiciary has not been one of McCain's areas of specialty during his long tenure in the Senate, and others describe his interest as more of an outreach to conservatives, who consider the issue very important and have had a sometimes rocky relationship with him.
When the court narrowly decided that detainees held in the military prison at Guantanamo Bay, Cuba, have the right to access federal courts, McCain called it one of the "worst decisions in history." Asked two months later what prompted such a strong denunciation, he said: "Sometimes I'm given to a little hyperbole."
Both men have ready evidence that even justices they hold up as examples do not always decide issues the way they would like. Roberts and Alito are deeply suspicious of McCain's landmark legislative accomplishment, the McCain-Feingold campaign finance reform bill, and have voted to strike parts of it as unconstitutional.
Likewise, Ginsburg and Breyer were in the majority of a case that Obama said was wrongly decided, when they struck down the death penalty for the rape of a child.
Even the charge of "judicial activism" -- which is sometimes measured by a court's readiness to overrule legislation approved by a democratic body -- is becoming harder to define. Liberals, along with Kennedy, rejected Congress's mandate on the legal options for terrorism detainees. Conservatives, along with Kennedy, set aside the District of Columbia's gun-control law.
"The parties often argue about which is the party of judicial activism and which is the party of judicial restraint," Dellinger said. "I think it's pretty much a scoreless tie."
By Robert Barnes
© 2008 The Washington Post Company





- 1
- 2
- next
See all 51 CommentsSarah Palins husband was anti-American secessionist, and why was she palling around with them?
Fact is, among the four principals (Obama, McCain, Biden, Palin), Biden is by far the more knowledgable and experienced with regard to foreign policy matters.
And if you want another example of forward thinking, Biden is the only one with the guts to point out that the only long-term solution to the Iraqi problem is de-facto partitioning. He said it last year, and he said it again in the primary debates.
And you know what? He''s absolutely right again!
But you sure don''t see McStain taking credit for what Georgie has done. Voted lock step with Shrub 90% of the time. Ol yellowstain mccain.......lol
--------------------------------------------------------------------------------
Posted by heartlandjim at 01:22 PM : Oct 07, 2008
and now he says he can "deal" with Iran, through "strict sanctions" (they McCain/Palin always make it sound like the world is a big classroom and he gets to be the teacher giving out detentions to the "bad kids") he''ll send troops in there and attack they''ll nuke us and it''ll start WW-3
I hope the RNC remembers this when the shoe is on the other foot and they cry about it.
Grandpa McMunster / Doctor Evil is going to loose the election and the RNC is in PANIC MODE.
---------------
Yea, and Obama voted with the Chappaquiddick Ted and the other Dems 97% of the time. (FactCheck.org) Neither one of them are all that much on change but I still think that McCain is the lesser of two evils.
O
S
A
M
A
B
I
N
L
A
D
E
N
hmmmm....matches up pretty good.
Hussein, bin laden. Our Country is at risk if these two numbnuts get in.
I hope the RNC remembers this when the shoe is on the other foot and they cry about it.
Grandpa McMunster / Doctor Evil is going to loose the election and the RNC is in PANIC MODE.
Posted by XmanBorg at 01:58 PM : Oct 07, 2008
BOTH sides are digging.
Hussein....
Good God.
--------------------
Please cite your sourse.
--------------------
Please cite your sourse.
.......................................
My "sourse"? Try infowars.com for starters. There are literally thousands of sites documenting media corruption over the years, and much has been made even in the MSM of Bush payoffs to journalists. Hell, Fox News admitted a couple of weeks ago that the White House gives them talking points daily and directs their discussions almost entirely. Are you kidding? Open your eyes. Now, back to reporting that fool to the Secret Service . . .
Posted by archibunker2 at 02:28 PM : Oct 07, 2008
................................................................
And I can see Russia from my house . . .
I''m sorry chief, but I guess I don''t find even idle threats to assassinate, hope for assassination, or even hypothetical discussions of possible scenarios for assassination, of a Presidential candidate even remotely humorous, and neither does the Secret Service. This will be investigated and taken seriously, and I will assure that. His ISP is recorded by the site, and he will get a visit.
Notice that your comments about how funny it would be if someone assassinated Obama are slowly disappearing from this site? I wonder where they could be going? I am in discussion with CBSonline, and they are in fact taking them very serious. They will be discussing the matter with the Secret Service later today and have been inundated with reports of similar discussion. Who''s whining now? I hope your cell in next to Richard Reed''s you anti-American fascists
Biden: "When we kicked -- along with France, we kicked Hezbollah out of Lebanon, I said and Barack said, ''Move NATO forces in there. Fill the vacuum, because if you don''t know -- if you don''t, Hezbollah will control it.'' Now what''s happened? Hezbollah is a legitimate part of the government in the country immediately to the north of Israel."
And this is a foreign policy expert. Yeah right!!
-------------------
He just uses his position to keep it concealed.
RELEASE INFORMATION ON VIETNAM POW/MIAs NOW!!!!!!!!!!!!!!!
Posted by mooshe47 at 02:26 PM : Oct 07, 2008
Nothing that McCain is doing or saying is leading to racial incidents. No news source is reporting what you are saying here. Are you sure that it isn''t just being made up. As far as hate goes, that is nothing new on either side.
Posted by Credibility2
Get real; Mc.Falin and the right wing attack dogs are the one spewing venom. As long as you look for the mote in the liberal''s eye, you forget the barn door in your own.
Posted by Credibility2
Get real; Mc.Falin and the right wing attack dogs are the one spewing venom. As long as you look for the mote in the liberal''''s eye, you forget the barn door in your own.
Posted by usclimey at 04:18 PM : Oct 07, 2008
A complete post there.
It illustrates the classic "You guys suck......No you guys suck.
You guys preach hate!........No, you guys are the one''s preaching hate.
Listening to Dems & Repubs argue about which party is best for America is no different than listening to The Bloods & The Crips argue about which gang is best for the neighborhood.
After thanking the crowd estimated by party officials a 7,000 for "a warm Southern welcome" and saying she was so glad to be among friends, the Alaska governor first turned to some children in the audience. Thousands were turned back because of room.
Posted by archibunker2 at 04:45 PM : Oct 07, 2008
YES,and she is sent to only strong republican spots in states, so don''t look at the picture they want you to see only what it is.
The founder of Alaska Independence Party Joe Vogler, the raging anti-American and Todd-Sarah''s political godfather, said, "My government is my worst enemy. I''m going to fight them with any means at hand."
"Vogler''s greatest moment of glory was to be his 1993 appearance before the United Nations to denounce United States "tyranny" before the entire world and to demand Alaska''s freedom. The Alaska secessionist had persuaded the government of Iran to sponsor his anti-American harangue.
That''s right ... Iran. The Islamic dictatorship. The taker of American hostages. The rogue nation that McCain and Palin have excoriated Obama for suggesting we diplomatically engage. That Iran."
Palin''s friend and AIP chairwoman Lynette Clark : "[Sarah] is Alaskan to the bone ... she sounds just like Joe Vogler."
http://www.salon.com/opinion/feature/2008/10/07/palins_unamerican/
Copy and paste this to spread it.
Caused by the democrats huh arch, lets hear some details on how that is so. Or are you just another blowhard republican with all talk and nothing to back it up. No wonder you support McCain, he is exactly the same as you.
He was THREE YEARS AHEAD in providing leadership. The bill that was finally passed would not have been negotiated were it not for Biden''s making the case for action. That Biden was not himself a key negotiator of that particular bill is incidental.
- 1
- 2
- next
See all 51 Comments