USA Today Examines How Presidential Candidates May Handle Supreme Court Nominations

Main Category: Abortion
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Article Date: 24 Oct 2008 - 5:00 PDT

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USA Today on Thursday examined how the differing experiences between presidential candidates Sens. John McCain (R-Ariz.) and Barack Obama (D-Ill.) and their respective choices of running mates would influence their nominations to the Supreme Court. Because five of the nine Supreme Court justices are age 70 or older, the next president may have several opportunities to make appointments, USA Today reports. Obama, a lawyer and former University of Chicago law professor chose as his running mate Sen. Joe Biden, also a lawyer, and chair of the Senate Judiciary Committee - which considers federal court nominees - for eight years. McCain, who led efforts in the Senate to resolve disputes over President Bush's nominations to the federal courts, chose Alaska Gov. Sarah Palin, an ardent critic of abortion rights and supporter of many conservative social issues.

Obama has said he would choose justices that would "stand up" for the disadvantaged. McCain and his running mate, Alaska Gov. Sarah Palin, "likely would hew to the values of their conservative base and seek nominees who would narrowly interpret the law, rather than expansively construe it to solve problems of the underdog." USA Today also reports that "McCain has said he does not want judges who will reach out to solve social problem that might be best left to elected officials."

The eldest justices on the current court -- John Paul Stevens, 88, and Ruth Bader Ginsburg, 75 -- are also among the most liberal, and if they retire and are replaced with conservatives, the court would change significantly. The appointment of Justice Samuel Alito, who replaced retired justice Sandra Day O'Connor in 2006, already has altered the law on issues such as abortion since he has voted more conservatively than O'Connor, USA Today reports. Walter Dellinger -- who, as U.S. solicitor general under former President Clinton's administration, was the government's top lawyer before the court from 1996-1997 -- said, "People don't realize how much is at stake." Theodore Olson, U.S. solicitor general from 2001-2004, added, "It is highly likely there will be (up to) three vacancies in the next president's full term. Justices serve on average 25 years. That's six presidential terms. They make life or death decisions."

According to USA Today, it is likely that the Supreme Court will continue to see challenges to Roe. Michael Dorf, a Cornell University law professor, said, "Roe v. Wade is at the top of the list" of what could be immediately at stake in nominations to the high court because only five justices -- a bare majority that includes four liberals -- have supported Roe. During the Oct. 15 presidential debate, Obama, said that in terms of the future of the Supreme Court, "Roe v. Wade hangs in the balance." McCain said the 1973 ruling was "a bad decision" that should be reversed. USA Today reports that the Senate confirms or rejects nominations and the Democratic-controlled chamber could make "substantial gains" this election. Therefore, if McCain is elected president, "he may be blocked from choosing an ultraconservative jurist. Obama, however, might have the leeway to push through a relatively liberal nominee."

As chair of the Senate Judiciary Committee from 1987-1995, USA Today reports that Obama running mate Sen. Joseph Biden (D-Del.) generally voted against ideologically conservative justices and for ideologically more liberal justices. According to USA Today, McCain running mate, Alaska Gov. Sarah Palin apparently has not followed the court closely but in her home state she has "been passionate about the most fractious topics that come before the court, perhaps more so than any other recent vice presidential candidate." This includes endorsing teaching creationism along with evolution in school and condemning the Alaska Supreme Court last year for striking down a parental consent law for girls under age 16 seeking abortions. According to USA Today, the court noted that parental consent, unlike parental notification, can mean "a veto" of the right to abortion. In a statement after the ruling, Palin said, "Our court is out of step with mainstream judicial decisions and our citizens. This decision is clearly a case of legislating from the bench" (Biskupic, USA Today, 10/23).

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