Bob Novak brings today's issue, the nomination of judges and justices.
Although John McCain has consistently stated he would select judges like John Roberts and Samuel Aliton, Novak questions rather those assurances would lead to candidates who could pass muster in the senate. Barack Obama has only spoken publically about judges a few times, and those comments are below the fold.
The LA Times has a very good piece on the views of the candidates with regard to judges, it concludes:
Many conservatives praised McCain's focus on a limited role for the courts."Much as I like and respect Barack, I think his vision of judging couldn't be more wrong," said Bradford Berenson, a Washington lawyer who worked in the current Bush White House and knew Obama at Harvard Law School. "Whereas McCain wants our judges and Supreme Court justices to be faithful to the Constitution . . . and decide cases according to law, Barack seems to think judges should systematically favor certain parties or groups and decide cases according to their personal sympathies or feelings about how who needs or deserves help."
Harvard Law School professor Laurence H. Tribe, who is an advisor to Obama, said McCain's speech "relied on simplistic and misleading slogans about judicial activism."
"Sen. Obama certainly doesn't share Sen. McCain's remarkable view that the greatest threat to American values and traditions comes from our independent federal judiciary," Tribe said. "On the contrary, Sen. Obama would find it crucial to preserve judicial independence in part to hold in check the excesses of unilateral executive power that have threatened our democracy under the Bush-Cheney administration."
According to CNS news:
Novak, the featured speaker at the event, predicted that the GOP will lose four seats in the Senate. As a result, said Novak, a President McCain will be "strongly tempted" to refrain from selecting a Supreme Court nominee such as Chief Justice John Roberts or Associate Justice Samuel Alito.Instead, McCain might settle on a nominee more like Anthony Kennedy, often the swing vote on the current court and who is viewed as more moderate than either of President Bush's nominees, said Novak.
Steve Calabresi and John McGinnis, both Northwestern Law professors and Federalist Society members wrote this about John McCain in a Wall Street Journal Op-ed:
[T]here is no reason to believe that Mr. McCain will not make excellent appointments to the court. On judicial nominations, he has voted soundly in the past from Robert Bork in 1987 to Samuel Alito in 2006. His pro-life record also provides a surety that he will not appoint judicial activists. ... [T]he agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.
Barack Obama stated upon the confirmation of John Roberts to the U.S. Supreme Court.
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- 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 cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile 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.
John McCain ridiculed this view of the "last mile"
These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.
This is one of very few issues I have discussed where, at least in rhetoric, there is a clear distinction between the candidates.