Despite his background as a lawyer and law lecturer at the University of Chicago, Barack Obama has said little from the stump about legal issues, particularly what sort of justices he'd want on the Supreme Court, whose makeup is likely to be shaped for decades to come by the next president's nominees.
John McCain, who has no legal background and who generally has not made matters of jurisprudence one of his signature issues in the Senate, has recently been more aggressive in offering his views on the law while campaigning.
He's done so in part to assuage lingering concerns among conservatives stemming from his participation in the so-called "gang of 14," a group made up of seven senators from each party who brokered a deal on judicial nominations that conservatives considered a betrayal of the prerogatives of the Senate's then-Republican majority.
"This is mostly about base politics," said Thomas Goldstein, who heads the Supreme Court practice at Akin Gump Strauss and a founder of the well-read SCOTUSblog. "Conservatives have always cared more about judges-have always recognized their lifetime appointments and their power much more than Democrats and progressives."
McCain mostly soothed his base's concerns when, flanked by admired elders of the conservative legal movement, he delivered a May 6 speech that Jeffery Toobin wrote in the New Yorker "amounted to a dog whistle for the right" that made clear that he'd nominate judges who are skeptical of the "right to privacy" that upholds the landmark abortion rights decision Roe v. Wade.
"McCain wants to appoint people like [Bush nominees] Roberts and Alito," University of Chicago law professor and informal Obama advisor Cass Sunstein told Politico. "If you want a Court that would rethink Roe and defer to the president on large questions of presidential power, that's more likely with McCain."
But while Supreme Court nominees-and particularly their views on Roe v. Wade-have been a hot issue in previous presidential elections, "there are some over-riding issues this year: the war in Iraq, the economy, we're in a bit of an energy crises," said Larry Hart, director of government relations at the American Conservative Union. "That has shunted other issues, including judicial ones, to the back burner."
But even if their impact is not front page news now, Supreme Court nominees will be a defining issue for the next president, since six of the sitting Justices are in their seventies. "If the next president serves eight years, he'll have the potential to cast a lasting mark on Supreme Court, so you'll see more talk in the coming months," said Robert Alt, deputy director of the Center for Legal and Judicial studies at the conservative Heritage Foundation. "There are other things that will press people on a daily basis like gas prices. But judges will be the big-ticket long-range issue."
In recent weeks both candidates have commented on a series of high-profile Supreme Court decisions. McCain criticized a ruling granting detainees in Guantanamo Bay access to U.S. courts, while Obama praised it. Both candidates opposed a decision that found the death penalty to be unconstitutional in individual crimes (unlike treason or espionage) where the victim's life was not taken. And both men praised the Supreme Court's declaration that the Washington, D.C. handgun ban was a violation of the Second Amendment.
Even when Obama, who voted against confirming both Roberts and Alito, has taken the same positions as McCain, however, McCain has aggressively sought to underscore differences.
He told the National Sheriff's Association on July 1, that the death penalty ruling was typical of what Obama's Supreme Court appointees would likely decide. "My oponent may not care for this particular decision, but it was exactly the kind of opinion we could expect from an Obama Court."
After Obama praised the handgun ban decision, McCain accused the Democrat of "one in a long … series in reversals of positions," pointing to an earlier statement from an unnamed Obama staffer who'd told the Chicago Tribune that "Obama believes the D.C. handgun law is constitutional." The Obama campaign, which had not otherwise made that claim, called the earlier statement an "inartful attempt" to characterize his position.
Part of the reason McCain may be aggressively bringing up these cases is that of those "that were in front of the Supreme Court this year, the left has a much less politically palatable set of positions," said Goldstein.
Whatever his reasons, Obama had mostly shied away from discussions of legal matters. Judicial nominations are not part of his stump speech, and even when opportunities have arisen, he has mostly found ways not to elaborate on his support for nominating Justices who would oppose overturning Roe.
Thus far, legal activists on the left have held their fire about Obama's agreement with conservatives on the Court's death penalty and gun control rulings. Nan Aron, President of the Alliance for Justice, said that she is not concerned by the fact that Obama sided with conservatives on the death penalty and gun control decisions. "I think a more accurate predictor is to look at the votes he's cast so far," she said. "He cast 'no' votes on Roberts and Alito, which offers a very sharp contrast with John McCain. McCain wants to appoint more justices like Alito and Roberts, while Obama wants to appoint more justices like Earl Warren."
"What the left is concerned about going into the 2008 elections," said Goldstein, "are two things that don't have anything to do with the Supreme Court: the War in Iraq, and people's pockets."
Even if Obama continues to focus elsewhere, it's not clear what further political gains McCain can extract from his aggressive stumping on matters of jurisprudence.
"There is not an independent voter in America, said Goldstein, "who is going to choose a president on the basis of the Supreme Court."
By Avi Zenilman and Ben Adler