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IN THEIR OWN WORDS: Obama & McCain on the Supreme Court, judicial philosophy

EDITOR’S NOTE: This is part of a special series of stories focusing on the election that Baptist Press will run between now and Nov. 4. Stories will run on Wednesdays and Fridays.

NASHVILLE, Tenn. (BP)–This is the third in a series of stories focusing on one specific national issue and detailing where the two major presidential candidates stand. Called “In Their Own Words,” the stories avoid commentary and instead present the candidates’ views as they have stated them in the past — either in interviews, speeches, debates or on their campaign websites.

Past Baptist Press stories spotlighted the issues of abortion and Iraq. Today, BP takes a look at the candidates’ positions on the role of the federal courts and the Supreme Court. Other future topics in the two-month-long series include the definition of marriage and gay rights, Darfur, the energy crisis, the environment, immigration and taxes.


— What types of justices Obama would nominate if elected president: “I have to side with Justice [Stephen] Breyer’s view of the Constitution — that it is not a static but rather a living document and must be read in the context of an ever-changing world” (Obama’s book, “Audacity of Hope”). “I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process. … And we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges” (speech before Planned Parenthood Action Fund, July 17, 2007). “There’s a lot at stake in this election, especially for our daughters. To appreciate that all you have to do is review the recent decisions handed down by the Supreme Court of the United States. For the first time in Gonzales versus Carhart [the partial-birth abortion case], the Supreme Court held—upheld a federal ban on abortions with criminal penalties for doctors. For the first time, the court endorsed an abortion restriction without an exception for women’s health. The decision presumed that the health of women is best protected by the court — not by doctors and not by the woman herself. That presumption is wrong (speech before Planned Parenthood Action Fund, July 17, 2007).

— Which justices on the current Supreme Court Obama would not have nominated: “I would not have nominated Clarence Thomas…. I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretations of a lot of the Constitution. I would not nominate Justice [Antonin] Scalia, although I don’t think there’s any doubt about his intellectual brilliance, because he and I just disagree…. John Roberts, I have to say was a tougher question only because I find him to be a very compelling person, you know, in conversation individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the bench confirms the suspicions that I had and the reason that I voted against him” (Saddleback Presidential Forum, Aug. 16, 2008).

— What Obama said on the Senate floor in opposing Samuel Alito, who was nominated for the Supreme Court by President Bush: “I have no doubt that Judge Alito has the training and qualifications necessary to serve. He’s an intelligent man and an accomplished jurist. And there’s no indication he’s not a man of great character. But when you look at his record — when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights” (speech, Senate floor, Jan. 26, 2006).

— What Obama said on the Senate floor in opposing John Roberts, who was nominated to be chief justice by President Bush: “The problem I face … is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point…. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions, … in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart…. The problem I had is that when I examined Judge Roberts’ record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak (speech, Senate floor, Sept. 22, 2005).


— What types of justices McCain would nominate if elected president: “The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself…. I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people … who know their own minds, and know the law and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power” (speech, Wake Forest University, May 6, 2008). “With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate and confirm better judges” (speech, Wake Forest University, May 6, 2008).

— Which justices on the current Supreme Court McCain would not have nominated: “With all due respect, Justice [Ruth Bader] Ginsburg, Justice [Stephen] Breyer, Justice [David] Souter, and Justice [John Paul] Stevens. I think that the president of the United States has incredible responsibility in nominating people to the United States Supreme Court. They are lifetime positions, as well as the federal bench. There will be two or maybe three vacancies [during the next president’s term]. This nomination should be based on the criteria of a proven record, of strictly adhering to the Constitution of the United States of America and not legislating from the bench. Some of the worst damage has been done by legislating from the bench” (Saddleback Presidential Forum, Aug. 16, 2008).

— What McCain said on the Senate floor in supporting Samuel Alito, who was nominated for the Supreme Court by President Bush: “Through 18 hours and over 700 questions before the Senate Judiciary Committee, [Alito] demonstrated that he will be an intelligent, fair and open-minded Justice who respects the judiciary’s important but limited role of interpreting the law. I believe that he is worthy of not only my own support, but that of other members of this body…. Judge Alito is a man of outstanding qualifications whose record as a thoughtful conservative has won my vote” [speech, Jan. 5, 2006].

— What McCain said on the Senate floor in supporting John Roberts, who was nominated to be chief justice by President Bush: “There may be some question about whether Judge Roberts is conservative. I think the president of the United States made it very clear in the last campaign, and I personally heard him state on numerous occasions, that he would appoint as a Supreme Court Justice, in the event of a vacancy, a person who strictly interpreted the Constitution of the United States. So just as in the previous administration President Clinton appointed judges such as Justices [Stephen] Breyer and [Ruth Bader] Ginsburg who would be viewed by some as liberal, so I think it is entirely appropriate that Justice Roberts be viewed as ‘conservative,’ if conservative means someone who strictly interprets the Constitution of the United States in making these incredibly important decisions that are made by the U.S. Supreme Court” (speech, July 20, 2005).
Michael Foust is an assistant editor of Baptist Press.

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