In the Balance

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

The liberal nightmare (and conservative dream) is McCain replacing one or more aging liberals with conservatives who proceed to overrule or hollow out Roe v. Wade and other liberal precedents; throw gay rights into reverse; discard the constitutional right to privacy; outlaw all racial preferences and school integration programs; narrow the reach of civil-rights protections for women, minorities, and disabled people; bless virtually unrestricted government funding of religious schools and sponsorship of crosses and other religious symbols on public property; stop shrinking and start expanding the death penalty; mow down gun control laws; roll back the four decisions since 2004 that have checked Bush administration efforts to expand presidential power in the name of fighting terrorism; and make it ever harder for consumers and workers to sue businesses.

The conservative nightmare (and liberal dream) is an Obama Court requiring taxpayers to fund essentially unlimited abortion rights throughout pregnancy; ordering all 50 states to bless gay marriage; expanding and perpetuating the use of racial preferences far beyond the 25-year phaseout suggested by the justices five years ago; prohibiting tuition vouchers for religious schools; stripping "under God" from the Pledge of Allegiance; banning the death penalty; striking down the new federal wiretap law; expanding judicial oversight of military detentions, CIA interrogations, and perhaps other operations worldwide; opening the floodgates to big-dollar lawsuits against business; eroding property rights; and perhaps creating new constitutional rights to physician-assisted suicide, human cloning, and massive government welfare and medical care programs.

Chances are that any change in the Court’s direction will be less extreme than these competing visions suggest, for two big reasons: A Democratic-controlled Senate might well block McCain from putting another strong conservative on the Court, and Obama may never have an opportunity to replace one of the Court’s current conservatives.

That said, the advanced ages of some of the liberal justices suggest that McCain would have a better chance of pushing the Court at least some distance to the right than Obama would have of pushing it to the left, especially during the next four years.

"The election is really a one-way street when it comes to the Supreme Court," says Thomas Goldstein, a leading Court practitioner and analyst. "Because the plausible retirements are all on the left, McCain can hope to move the Court significantly to the right. But the best case for Obama is to freeze its ideology in place."

Obama and McCain, of course, do not say in so many words that they will name "liberal" or "conservative" justices. And no such simplistic label can capture the complexity of any judge’s philosophy or voting patterns. The four "liberal" justices, for example, are too cautious to slake the thirst of many Democrats for a vision of crusading, Court-driven social reform. But in politically charged cases on which the justices are closely divided, eight of them–all but Kennedy–happen to split 4-4, with considerable consistency, along lines corresponding to liberal and conservative policy outcomes. That’s why these admittedly imperfect labels are the best available shorthand for generalizing about differing approaches to judging.

Battles Ahead?

All nine justices appear to be in good health. But the two oldest–88-year-old John Paul Stevens and 75-year-old Ruth Bader Ginsburg–are liberals. So is 68-year-old David Souter, who has told friends that he longs to go home to New Hampshire. By contrast, Kennedy and the four conservatives seem reasonable bets to serve another four to eight years or more. Kennedy and conservative firebrand Antonin Scalia are 72. Clarence Thomas, the Court’s most conservative member, Alito, and Roberts are a relatively frisky 60, 58, and 53, respectively. Six of the last eight justices to retire or die in office ranged in age from 79 to 85.

Given this age distribution, a President McCain would have at least one potentially balance-tipping vacancy to fill unless the vigorous Stevens smashes the oldest-serving-justice record set by Oliver Wendell Holmes Jr., who retired at 90. But it’s doubtful that McCain could get the Senate to confirm a nominee with strong conservative credentials, especially to replace one of the liberals or Kennedy. (For possible McCain and Obama Supreme Court nominees, see sidebar, pp. 26-27.)

Precisely because of the dramatic impact that a conservative nominee could have on issues including abortion rights and racial preferences, the pressure from liberal activists for Senate Democrats to stop any conservative–by filibustering, if necessary–would be extremely intense.

So, the battle over any strongly conservative McCain nominee could be even more ferocious than the one that ended in the defeat of conservative Judge Robert Bork in 1987 by a 58-42 vote. Democrats had a 54-46 Senate majority then, and they hope to gain enough seats in this year’s elections to have a comparable majority in 2009, even if McCain wins the presidency.

President Reagan cared more about moving the Court to the right than does McCain, who showed little interest in the courts until he needed the judicial-appointment issue to woo conservatives who have never trusted him. But even Reagan was forced to turn to a more moderate, less predictable figure after Bork’s defeat. He chose Kennedy, who has alternately sided with and infuriated conservatives.

McCain would also have to wrestle with the fact that potential nominees whom conservatives find pleasing would also be good bets to strike down part or all of McCain’s signature legislative achievement: the 2002 McCain-Feingold campaign finance law.

Adding to the problems the Republican might have in finding a confirmable conservative is the strong political pressure that he (or Obama) will feel to name a woman. At a time when nearly half of the nation’s law students are women, the Court’s 8-1 male-female ratio strikes many people as offensive, or at best odd. There will also be pressure to put a Hispanic-American or another African-American on the Court.

There is no shortage of well-qualified female lawyers. However, there is a glaring shortage of well-qualified female lawyers who are also identifiably conservative, clearly confirmable, old enough (over 40) to seem sufficiently experienced, and young enough (under 65) to serve for many years. Indeed, Republican experts are hard-pressed to name a single woman–or an African-American or Hispanic-American male, for that matter–who fits all of these criteria. Some fear that if Democrats’ Senate majority grows, "confirmable conservative" may be an oxymoron.

Beyond that, conservative judges have been smeared as monsters ever since Sen. Edward Kennedy, D-Mass., declared: "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens’ doors in midnight raids." Some outstanding potential McCain nominees don’t want to subject themselves to the ordeal that the confirmation process has become.

Miguel Estrada, a brilliant, solidly conservative appellate lawyer who soared to the top of his Harvard Law School class after emigrating from Honduras as a teenager, was seen by admirers as the perfect prospect to be the first Hispanic-American justice. But when he was nominated in 2001 for a federal Appeals Court, he was trashed by liberal groups and ultimately blocked by a Democratic filibuster.

In 2005, Estrada flatly refused when the White House pressed him to consider taking the nomination to succeed Justice Sandra Day O’Connor, according to Supreme Conflict, a penetrating 2007 book about the Court by Jan Crawford Greenburg, now of ABC News. Part of the reason was the tragic death of Estrada’s wife the year before. Part of it was that he did not want to go through the confirmation wringer again. Maura Corrigan, an impressive Michigan Supreme Court justice, also refused.

Democrats do not have a monopoly on character assassination, of course. In 1999, to pick just one example, then-Sen. John Ashcroft called a well-qualified Clinton nominee named Ronnie White "pro-criminal and activist," with "a tremendous bent toward criminal activity." Democrats have taken their revenge by smearing some equally worthy Bush nominees. Thus has the confirmation process become ever more vicious, occasionally marked by a temporary truce.

"I would hope that if Senator McCain is elected president, the Democrats in the Senate would respect a highly qualified nominee of McCain’s as much as the Republicans in the Senate would respect a highly qualified nominee of a President Obama," says Theodore Olson, a leading conservative lawyer and former Bush solicitor general who is McCain’s most prominent adviser on judicial appointments.

Olson noted that Republican senators voted overwhelmingly for Clinton’s Supreme Court nominees, Ginsburg and Stephen Breyer, in 1993 and 1994. But the judicial confirmation wars have become uglier since then, and Olson seems likely to be disappointed.

A President Obama, on the other hand, would be less likely to have an opportunity to make a balance-tipping nomination but far more likely to get the Senate to confirm just about anyone he chose. Democrats are likely to pick up three to six more Senate seats in November if an Obama win provides them with coattails.

The door would be open for Obama, if he were so inclined, to appoint the kind of crusading liberal that the Court has not seen since Justices William Brennan and Thurgood Marshall retired in 1990 and 1991–or, for that matter, to appoint Hillary Rodham Clinton if she wanted the job.

Replacing one or more of the current liberals with such a figure would solidify the liberal bloc. And a Scalia or Kennedy retirement would enable Obama to move the Court dramatically to the left, creating a solid liberal majority for the first time since Chief Justice Earl Warren retired in 1969.

Senate Republicans would fight hard–and some might fight dirty–to stop a crusading liberal nominee. But they would probably lose. Not only will Republicans almost certainly be in the minority; they will also have a hard time mustering 41 votes for a filibuster. Senate GOP leaders assailed filibusters of nominees as unconstitutional when Democrats were doing it to some of Bush’s Appellate Court choices. The filibusters ceased as part of a bipartisan deal in 2005 among 14 mostly moderate senators, one of whom was McCain.

While that informal deal would not stop Republicans from trying to filibuster an Obama Supreme Court nominee, a mass Republican flip-flop on such a matter of constitutional principle would look awfully hypocritical.

For these and other reasons, "It would be an exciting search and an exciting process to gather names of potential nominees for President Obama to consider, because there are a lot of highly qualified and confirmable candidates," says Gregory Craig, a Washington lawyer who is one of Obama’s main foreign-policy advisers.

It’s unclear whether a President Obama would be in crusading-liberal mode or in consensus-builder mode in choosing a justice. An appointee likely to push the law hard to the left would delight liberals while aggravating the Court’s ideological polarization. A moderate-liberal consensus-builder might disappoint some of Obama’s most fervent supporters.

Sharp Contrasts

Apart from the Supreme Court, the next president will fill a steady stream of vacancies–and perhaps a batch of newly created seats–on the federal District and Appeals courts. The cumulative impact of those choices may well be more important than any one Supreme Court appointment, although far less visible.

U.S. District and Appeals Court judges have broad discretion to decide the many legal issues left unresolved by the relatively small number of Supreme Court decisions. The 70 cases decided by the Court over the last year–the fewest in more than half a century–amount to about one-tenth of 1 percent of the 60,000 or so appeals filed annually in the regional federal Appeals courts, and less than 4 percent of the petitions for Supreme Court review.

After almost eight years of Bush appointments–and Democratic defeats of especially conservative nominees–Republican-appointed judges hold 54 percent of the 674 full-time federal District Court judgeships and 56 percent of the 179 full-time seats on the 13 federal Circuit Courts of Appeals, which play a far more important role in setting legal policy.

GOP appointees have lopsided majorities on six of these federal circuits and smaller majorities on four others. Democratic appointees dominate only the expansive 9th Circuit, with 16 of its 29 seats. The remaining two circuits are closely balanced. The next president will have at least a dozen Appellate vacancies waiting for him when he takes office, and Congress may create more judgeships next year.

Given normal rates of attrition, a President Obama might be able to replace enough Republican judges over eight years to leave the Appeals courts about evenly balanced, perhaps with a majority of Democratic appointees. A President McCain would be in a position to leave strong majorities of Republican appointees on all 13 circuits.

McCain has been especially outspoken on the campaign trail about judicial appointments, in keeping with his need to rally the Republican base. Obama, who was president of the Harvard Law Review and has taught constitutional law at the University of Chicago, has also made his approach pretty clear.

The contrast between them was particularly striking when they reacted to the Court’s 5-4 decision on June 12 that Guantanamo detainees have rights to full federal judicial review of their petitions for release–a strong rebuff to Bush. Obama praised the liberal justices (plus Kennedy) for "an important step toward re-establishing our credibility as a nation committed to the rule of law." McCain condemned them for "one of the worst decisions in the history of this country."

Some other contrasts:

•On broad judicial philosophy, as he campaigned in Ohio in March, Obama cited Warren as a model for the kind of justice he would pick. "I want people on the bench who have enough empathy, enough feeling for what ordinary people are going through," he explained. Last year, Obama stressed that courts have a special duty to protect "the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout" in the political process. During the Senate confirmation debates on Roberts and Alito, Obama criticized Roberts for siding with "the strong in opposition to the weak," and admonished Alito for helping "the powerful against the powerless" and working "on behalf of a strong government or corporation against upholding Americans’ individual rights." The "truly difficult" cases, Obama added, "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 ridiculed these last words in a major speech of his own about judicial appointments on May 6 at Wake Forest University: "These vague words attempt to justify judicial activism. Come to think of it, they sound like an activist judge wrote them." Calling judicial appointments "one of the defining issues of this presidential election," McCain echoed decades of conservative complaints about "an elite group of activist judges" who "make law instead of apply it" and violate "the clear intentions of the Framers" by issuing "rulings and opinions … on policy questions that should be decided democratically [and] show little regard for the authority of the president, the Congress, and the states, [or] the will of the people."

•On the impact of Roberts and Alito, Obama’s campaign responded to the McCain speech by saying, "What’s truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," adding that any McCain appointees would threaten abortion rights and campaign finance reform. Obama has also thrown the perennial "judicial activism" charge back at conservatives. "The nation has just witnessed how quickly settled law can change when activist judges are confirmed," he said a year ago. "In decisions covering employment discrimination to school integration, the Roberts-Alito Supreme Court has turned back the clock on decades of hard-fought civil-rights progress."

McCain, as noted earlier, has praised Roberts and Alito as model justices.

•On abortion, Obama assailed the Court’s April 2007 decision upholding the congressional ban on "partial-birth" abortion as a dramatic departure from precedents protecting a woman’s right to choose. He also warned that "conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade."

The anti-abortion McCain said: "I’m very happy about the decision, given my position on abortion. ‘Partial birth’ is one of the most odious aspects of abortion."

•On court-ordered same-sex marriage, Obama’s campaign said that he "respects" the California Supreme Court’s decision in May requiring the state to recognize gay and lesbian marriages. This contrasted with Obama’s previous position that he opposed gay marriages and supported "civil unions"–the same distinction that the court struck down. Obama later denounced as "divisive and discriminatory" a ballot initiative designed to overturn the gay-marriage decree.

McCain’s campaign said that he "doesn’t believe judges should be making these decisions," and he welcomed the ballot initiative as giving "the people of California … the opportunity to decide … the definition of marriage, rather than having that decision made by judicial fiat."

•On property rights, Obama has had little to say. In his May 6 speech, McCain leveled a blast at a 2005 decision by the liberal justices (plus Kennedy) that enraged defenders of property rights, including some who are far from rich. The majority allowed the city of New London, Conn., to use its eminent domain power to evict 15 middle-class homeowners, raze their houses, and lease their land to private companies planning an upscale development.

•On lawsuits by employees and consumers against businesses, Obama has complained that the Court’s conservatives too often side with business. McCain has defended some of these decisions while denouncing bogus lawsuits ginned up by trial lawyers for their own profit.

Two areas of superficial agreement between Obama and McCain are their reactions to Supreme Court decisions last month on the death penalty and gun control. Both criticized the ruling by the Court’s liberals (plus Kennedy) that the Constitution bars imposition of the death penalty for raping a child, no matter how brutally. And both praised the ruling by the conservatives (plus Kennedy) that people have a right to keep handguns at home for self-defense.

McCain has been consistent in championing broad gun rights and the death penalty; Obama was not until after he had wrapped up the nomination and turned to courting centrist voters. Obama’s general statements on judicial appointments suggest that he would choose new justices and judges who would take the liberal side on such issues.

Center of Gravity

For all of the ink spilled by conservative critics of the "liberal Court" and liberal critics of the "conservative Court," the justices usually seem to avoid getting very far out of kilter with public opinion. There have been exceptions, including a conservative majority’s decisions more than 70 years ago striking down early New Deal laws and the liberal Warren (and early Warren Burger) Courts’ dramatic decisions expanding criminal defendants’ rights, ordering crosstown busing to desegregate schools, and striking down all 50 states’ restrictions on abortion. But Finley Peter Dunne’s Mr. Dooley was about right when he said in 1901: "Th’ supreme coort follows th’ iliction returns."

That helps explain why polls show that over the past three decades, the Court’s ideological center of gravity has remained fairly close to (and somewhat to the left of) the center of public opinion–albeit to the right of most journalists and academics–on big issues including abortion, affirmative action, religion, the death penalty, gay rights, and presidential war powers. All this even though 12 of the last 14 justices have been appointed by Republican presidents.

Roberts and Alito may well move the Court to the right of center on some issues. Alito is markedly more conservative than the justice he replaced, O’Connor, who had moved across the Court’s ideological spectrum over her 24 years to end up voting with the liberals on most big issues.

Three major decisions last year would probably have come out differently had O’Connor remained. One upheld the federal law against "partial-birth" abortion; one weakened the McCain-Feingold campaign finance law’s restrictions on campaign advertising by corporations and unions; and one virtually prohibited use of race-based student-assignment plans to integrate public schools.

That last ruling prompted Breyer’s June 2007 lament, "It is not often in the law that so few have so quickly changed so much." It may presage decisions striking down many or most race-based affirmative-action preferences in state university admissions and government employment and contracting.

But the centrist Kennedy still holds the balance of power on the biggest issues. And for all of the complaints that the four conservatives are Far Right radicals, Scalia may be no further to the right of center of public opinion than Ginsburg is to the left. Roberts and Alito seem closer to the center than Scalia and much closer than Thomas. (He sometimes seems nostalgic for the days when the Court was striking down New Deal programs.) Indeed, Scalia accused Roberts last year of "faux judicial modesty" for refusing (as did Alito) to go as far as Scalia and Thomas wanted toward junking McCain-Feingold.

Many liberal critics see the differences among the four conservatives as merely stylistic. Not so Jeffrey Rosen, a George Washington University law professor and prolific commentator who has hailed Roberts’s efforts to build consensus on the Court. Noting in a recent Time commentary that Obama’s only major quarrel with this year’s decisions was the ban on executing child rapists, Rosen wrote: "When a leading Democrat is criticizing the Supreme Court for not being conservative enough, it’s time for liberals to breathe a sigh of relief." Perhaps so. But liberals don’t sound relieved.

Three years ago this summer, Senate Judiciary Committee ranking member Patrick Leahy complained bitterly about conservative decisions on women’s rights, the environment, and more. The punch line: "We have the most activist Supreme Court in my lifetime."

Fast-forward three years. In the keynote speech at a convention of the liberal American Constitution Society last month, Leahy, now the Judiciary Committee chairman, had a new batch of conservative decisions to skewer. But he used the same punch line: "We have the most activist Supreme Court in my lifetime."

John McCain agrees that judicial activism is a big problem. But not on how to fix it.