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The next president will be able to choose at least two new Supreme Court justices. The Register examines McCain’s and Obama’s judicial philosophies.
BY GAIL BESSERegister Correspondent
WASHINGTON — Increasingly, the
issues nearest and dearest to American voters’ hearts aren’t decided by voters.
They’re decided by judges.
And so the next president might have
his most profound effect on issues of life, marriage and Americans’ personal
liberties indirectly, by appointing federal judges.
Sens. Barack Obama and John McCain
make very different claims about their judicial philosophies. Whoever wins the
Nov. 4 election could replace at least two Supreme Court justices and nominate
hundreds of appointees to the U.S. appellate and district courts.
Courts are increasingly deciding
challenges to laws that safeguard parental and property rights and freedoms of
conscience, speech and religion.
judges uphold these laws or override the decisions of voters and elective
representatives depends on their judicial philosophy, and legal experts agree
that future federal court appointments will reflect the next president’s
These lower court positions are
pivotal because only a small percentage of cases reach the Supreme Court, noted
Boston College Law School Professor Scott FitzGibbon.
“Before the next presidential term
is over, four of the current Supreme Court justices will have reached their
75th birthday,” he said. “Vacancies are highly likely.”
This is critical to the issue of
protecting human life, as the nine-member court now has a predicted margin of
only one in favor of upholding Roe v. Wade. Two
justices who support Roe are expected to
“We can expect Justices John Paul
Stevens and Ruth Bader Ginsburg, a cancer survivor, to step down during the
next administration,” said Benjamin Bull, chief counsel for the Alliance
Defense Fund, a religious liberty group.
Along with Stevens, 88, and
Ginsburg, 75, Justices David Souter, 69, and Stephen Breyer, 70, have
consistently supported abortion (see related story on the Books and Education
Justice Anthony Kennedy, 72, has
opposed a ban on abortion but supported strict regulation.
On the other hand, Justices Clarence
Thomas, 60, and Antonin Scalia, 72, have said that Roe
should be overturned. The two latest appointments, those of Chief Justice John
Roberts Jr., 53, and Justice Samuel Alito, 58, had pro-life support.
While Obama opposed both
appointments, McCain voted for them and has said he would appoint more judges
in the cast of Roberts and Alito.
Bull explained: “These types of
justices will pay strong adherence to the founders’ intent, as reflected in the
Constitution. They’ll generally defer to the two democratic parts of our
government — the legislative and executive branches. They will seek narrow
decisions and avoid broad expansive and uncharted empowerment of the federal
government. McCain will appoint justices with strong respect for the individual
and private property rights.”
McCain calls Roe
“a flawed decision that must be overturned,” and promises he “will nominate
judges who understand that courts should not be in the business of legislating
from the bench.”
His judicial philosophy, according
to his website: “I will look for accomplished men and women with a proven
record of excellence in the law, and a proven commitment to judicial restraint
… who know their own minds, and know the law, and know the difference.” The
site also quotes McCain looking for justices that are “faithful in all things
to the Constitution.”
Obama’s website contains no summary
of his judicial philosophy, and his campaign declined four requests to supply
one. But in his voting record and public speeches, he has come down clearly for
justices who back unrestricted abortion and seek an “up-to-date” view of the
Obama told a Planned Parenthood
audience last year that he’s committed to appointing judges who will keep Roe
in place. The first thing he will do as president, he said, is pass the Freedom
of Choice Act (FOCA), which could nullify all state abortion regulations, such
as informed consent and parental notification (More on
FOCA in our editorial, page 8.)
As an Illinois state senator in
2003, he led the opposition there to a bill identical to the federal Born-Alive
Infants Protection Act, which gives legal protection to babies who survive a
When asked in a 2007 primary debate
how he would choose judges, Obama replied, “When you look at what makes a great
Supreme Court justice, it’s not just the particular issue and how they rule,
but it’s their conception of the Court. And part of the role of the Court is
that it is going to protect people who may be vulnerable in the political
process: the outsider, the minority, those who are vulnerable, those who don’t
have a lot of clout.”
Said Boston College’s FitzGibbon, “I
think it likely that he would regard same-sex couples as among the vulnerable
people who ought to be protected by the judiciary,” said FitzGibbon. “It’s
likely that Obama’s judicial nominees would in various ways support the
recognition of same-sex ‘marriage.’”
On his website, McCain says he
“believes the institution of marriage is a union between one man and one
woman.” Where state and local governments have enacted protections for the
traditional family, “the role of the Court is not to subvert the rights of the
people by legislating from the bench.”
McCain voted to define marriage as
between a man and a woman, but more recently, he voted to kill the federal
marriage amendment without even allowing it to be debated in the Senate.
Courts will impact other rights:
parental, property, freedoms of conscience, speech and religion. Bull predicted
that Obama justices would favor the interests of the state and McCain justices
would favor the rights of individuals in conscience protection and property
And the ability of parents to opt
children out of public school classes on religious grounds also hangs in the
balance, concluded Hadley Arkes, senior fellow of the Ethics and Public Policy
Center in Washington, D.C.
He referred to the fact that
Massachusetts has allowed civil same-sex “marriage” following a 2004 court
ruling. Now, parents who object to homosexual issues being presented to their
young children are being told — in one case by federal judges — that they have
no legal grounds even to be given prior opt-out notification.
Said Arkes, “If courts rule in favor
of same-sex ‘marriage,’ you’ll have the same situation across the country that
we have here.”
Gail Besse is based in Boston.
At a Glance
Paul Stevens, 88
David Souter, 69, Bush, 1990
Ruth Bader Ginsburg, 75
Senators’ Votes on Justices
It’s not a surefire way to predict how a
president would choose nominees for the Supreme Court, but here’s a list of how
Supreme Court justices have viewed abortions, and how candidates have voted on
nominations as U.S. senators.
Sen. Barack Obama has been in the Senate
since 2005, and he has had a chance to vote on two U.S. Supreme Court nominees.
Sen. John McCain has served since 1987, and he has had the chance to vote on
eight Supreme Court nominees. Sen. Joseph Biden, Obama’s running mate, has
served since 1973, and he has had a chance to vote on 12 Supreme Court
nominees. (Gov. Sarah Palin, McCain’s running mate, has never served in the
John Paul Stevens
Decided for upholding Roe v. Wade (June
1992). Confirmed, 98-0, in 1975. Biden Yea.
Considered to be against abortion. Rejected, 58-42, 1987. McCain
Yea; Biden Nay.
Decided to uphold Roe v. Wade
1987. McCain Yea; Biden No
Decided to uphold Roe v. Wade
(1992). Confirmed, 90-9, 1990. McCain Yea; Biden
Decided against upholding Roe v. Wade (1992).
Confirmed, 52-48, 1991. McCain Yea; Biden
Ruth Bader Ginsburg
Says government should fund abortion (2006). Confirmed, 96-3, 1993. McCain
Yea; Biden Yea.
Supports Roe v. Wade (Jan. 1998). Confirmed,
87-9, 1994. McCain Yea; Biden
John Roberts Jr.
Considered to be against abortion. Confirmed, 78-22, 2005. McCain
Yea; Obama Nay; Biden Nay.
Samuel Alito Jr.
Considered to be against abortion.
Confirmed, 58-42, in 2006. McCain, Yea; Obama Nay; Biden Nay.