McCain v. Obama's Effect on Supreme Court

By Jeralyn, Section Elections 2008
Posted on Sat Sep 20, 2008 at 09:10:52 PM EST
Tags: Barack Obama, Sarah Palin, John McCain (all tags)

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The New York Times compares Barack Obama and John McCain's effect on the Supreme Court.

Mr. McCain has promised the right wing of the Republican Party that he would put only archconservatives on the Supreme Court. Even moderate conservatives like Anthony Kennedy, the court’s current swing justice, would not have a chance.

Mr. McCain, whose Web site proclaims his dedication to overturning Roe v. Wade, would appoint justices who could be expected to lead the charge to eliminate the right to abortion. The kinds of justices for whom Mr. McCain has expressed a strong preference would also be likely to undermine the right of habeas corpus, allowing the government to detain people indefinitely without access to lawyers or family members.

After more examples of the court we'd get under McCain, the Times evaluates Obama's effect: [More...]

As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

Predicting vacancies on the court is difficult. But odds are that members of the liberal bloc, like 88-year-old John Paul Stevens, will leave first. That means that if Mr. Obama is elected, he might merely keep the court on its current moderately conservative course. Under Mr. McCain, if a liberal justice or two or three steps down, we may see a very different America.

As I've pointed out repeatedly, if McCain wins it will be because the radical right leapt to his cause once he put evangelical Sarah Palin on the ticket. It is only their enthusiasm that can win the election for McCain. Should McCain win, the radical right will call in its chit and the price will be our Supreme Court justices.

This is the chief danger of McCain-Palin, from my point of view. Congress can pass all the laws it wants, but it is the Supreme Court that decides if they are constitutional. Supreme Court justices can serve 30 or 40 years. What kind of legacy is this to leave our children?

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McCain v. Obama's Effect on Supreme Court | 33 comments (33 topical)

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Scalia (5.00 / 1) (#1)
by WS on Sat Sep 20, 2008 at 09:20:29 PM EST

is in his early seventies. I can't wait until he leaves. Kennedy is also in his early seventies so maybe he wants to leave too.

Obama has to win to save the Supreme Court and maybe even take it back.

Judges can be impeached and removed (5.00 / 2) (#6)
by pluege on Sat Sep 20, 2008 at 09:57:29 PM EST

and certainly Thomas is the poster child of a person that has no business being confirmed as a Supreme Court Justice. But there he sits continuing for many, many years to come inflicting his incompetence, ignorance,and malfeasance on the American legal system, a disgrace tenfold over.

: That's a can of worms we should not open (none / 0) (#11)
by myiq2xu on Sat Sep 20, 2008 at 10:13:46 PM EST

Impeaching judges because we don't like their rulings is not "high crimes and misdemeanors."
Sooner or later, the GOP would return the favor, with interest.

Given McCain's vow to nominate (5.00 / 1) (#13)
by oculus on Sat Sep 20, 2008 at 10:28:08 PM EST

Supreme Court Justices in the mold of Alito and Scalia, I can't really see that adding Gov. Palin to his ticket makes any difference as to whom he will nominate to SCOTUS.

: it means McCain will be beholden (5.00 / 2) (#18)
by Jeralyn on Sun Sep 21, 2008 at 12:02:38 AM EST

to the radical right if he wins. I've written about this many times. It doesn't mean Palin would have a say in the judges, it means the fundamentalist groups led by the likes of James Dobson will.
Sen. Schumer said George Bush made a similar pact with them and they considered Harriet Miers nomination a breaking of that pact and torpedoed her nomination.

Sen. Schumer was emphatic in his remarks to us. He said the hard right, both economic and religious, has decided that the only way to push their agenda through is to control the courts. If they win and gain control of the courts, both economically and socially, they will roll back America to the 1930's or the 1890's.
He said that the hard right made a deal with George Bush during the election. It would support him and "not hound him", but he had to cede control of his judicial nominations to the Federalist Society.

If McCain wins, he owes them big time and they will call in the debt.

: constitutionalist (none / 0) (#34)
by Dayona on Tue Oct 21, 2008 at 12:52:42 PM EST

I'm new to this site and an independent. I've read some of the remarks posted and I'm interested in knowing why people are afraid to have justices who believe in making rulings based on the contitution? What benefit to society will progressive rulings have? Perhaps as some are afraid of conservative rulings, I am afraid of a small group of individuals or worse, one individual creating a new law that doesn't exist based on interpretation. If a new law is needed, can't it be legislated? Isn't that the purpose of the legislature? I'm not sure why anyone would want to put the legislative process in hands of an individual(s). Please explain it to me so I could better understand that point of view.

So, what we're really worried about (2.00 / 0) (#2)
by Anne on Sat Sep 20, 2008 at 09:38:42 PM EST

is the Senate's inability to check McCain on his nominations, isn't it? Because there's no reason the majority-Democratic Senate could not reject any nominee deemed too radical for the Court, is there? Or are you really making the case that whichever one of these candidates is elected will get his nominations through, no questions asked?

Should Obama nominate someone, say, like Cass Sunstein, could we trust that same Democratic Senate to do the due diligence and possibly also reject him based on his writings about Roe - among other things? Or are we assuming that anyone Obama would nominate would be acceptable? You know, Reagan had his David Souter, much to his chagrin - and not only could a McCain nomination go in that direction, but an Obama nomination believed to be a slam-dunk for liberal causes could go in the other direction.

McCain's not the only one with chits out there that will be called in, and I have seen no guarantee from Obama that he will not honor those chits in ways that could negatively impact people's lives, or fly in the face of his pre-election promises.

The Senate is not actually capable (5.00 / 2) (#3)
by andgarden on Sat Sep 20, 2008 at 09:48:18 PM EST

of blocking most nominees. If you elect a person President, you can put money on him getting his choices through. Full stop.


Keep it rough, make it tough (none / 0) (#4)
by dead dancer on Sat Sep 20, 2008 at 09:52:25 PM EST

You could make it hard enough that someone in their seventies might just get upset enough to leave.

O chit, then we'd be covered in it!


Good point (1.33 / 3) (#8)
by cib on Sat Sep 20, 2008 at 10:06:48 PM EST

Except the whole point of this blog when it comes to just about anything, but most esp. Supreme Court nominees, is to hold the majority Democratic congress blameless and make sure they are non-accountable.

I also like how McCain is this terrible liar, but the ONE domestic issue we can absolutely trust him on is that he will try to elect the most right-wing anti abortion judge out there - even though his whole past history on the subject reveals that he is more a pragmatist than ideologue and his whole history the last 8 years seems to find him ready to lie to anyone.


: hm (5.00 / 1) (#15)
by connecticut yankee on Sat Sep 20, 2008 at 10:53:52 PM EST

Well, the one recent example we have is Bush, who also waffled on many issues but came through on his court promises. If McCain wants a second term, or if Palin wants it, they will need hard-right justices.
If McCain wins, the court is likely gone for a decade, if not a generation.

The Democratic Senate can't (none / 0) (#9)
by myiq2xu on Sat Sep 20, 2008 at 10:11:08 PM EST

but as long as they can filibuster the GOP minority sure can.

It's unlikely that the Democrats will get 60+ in the Senate anytime soon.


: Ginsburg ... (5.00 / 1) (#24)
by FreakyBeaky on Sun Sep 21, 2008 at 01:20:27 AM EST

... was confirmed by an extremely partisan and hostile Republican Senate.
There is no action to the idea that the Congress could, realistically, stonewall an elected President's SCOTUS picks. None at all.
Similarly, there is no logic to the proposition that we don't know what Obama's SCOTUS picks would be like, therefore McCain's, which we know would be horrible, are preferable because Congress can stop them (wrong), and besides their rulings might be more liberal once they are on the court.
Yeah, it's happened before. Want to bet on it? Now? I don't. We're one vote away from throwing out Habeus Corpus, i.e., one vote away from tyranny. I don't think that's overstating the case.
Look, Obama wasn't my first or second choice, and I still regard electing him as a necessary evil - but with major emphasis on necessary, particularly with regard to SCOTUS.

Unfortunately (none / 0) (#26)
by NYShooter on Sun Sep 21, 2008 at 02:08:04 AM EST

you're probably correct....now. It wasn't always this way, however. It's too late to research tonight, but it seems to me that years ago Presidents would confer with leaders of the out party to test candidates for acceptability. But the Dem. leadership today just seems so willing to capitulate ("impeachment, FISA") without even the pretext of opposition.


Just not reality (5.00 / 0) (#5)
by pluege on Sat Sep 20, 2008 at 09:53:57 PM EST

If you're old enough, you should know by the brouhaha over the Bork rejection what a big deal it is to turn down a President's pick - and that was when things were much more reasonable than today. bush has established the republican model, if Congress does something he doesn't like, just keep on doing it, only more extreme. You think for one second, mccain (who in many respects is even more of a psycho whack job than bush) is going to suddenly pick a moderate justice just because democrats reject a wingnut extremist pick of his - get real.


Under no REASONABLE scenario (5.00 / 1) (#7)
by domerdem on Sat Sep 20, 2008 at 09:59:47 PM EST

can a McCain presidency lead to a better Supreme Court than a Obama presidency. Just ain't so.


Depends (1.00 / 3) (#10)
by cib on Sat Sep 20, 2008 at 10:12:08 PM EST

Depends on which rights you value.

I value the second, and the right to self defense and I don't think Obama gives a s**t about it.

I value it just as much as you value the right to abort pregnancies which are just too inconvenient to give up for adoption or abandon.

I live in a violent area of a city where I am not allowed a handgun to protect myself, but I can guarantee that all the gangbangers have them. That or a shiv.

I'm afraid that even though you..like all right thinking progressives ..doesn't value my gun rights at all, I still DO support the Roe V Wade decision -on the ground of a right of privacy I believe is one of the "unenumerated" rights in the ninth.I just refuse to throw out parts of the Bill of Rights because they are "archaic" or "dangerous" or any of the other various shibboleths that get thrown around the issue of gun rights. And thus I can mourn whichever of these asswipes wins. Because the constitution loses either way.


CIB, you are done here (5.00 / 4) (#14)
by Jeralyn on Sat Sep 20, 2008 at 10:52:09 PM EST

thanks for stopping by. Your tone is insulting and you are a chatterer.


ach (5.00 / 2) (#16)
by connecticut yankee on Sat Sep 20, 2008 at 11:01:33 PM EST

I dont understand this second amendment paranoia but I think it's fed by the NRA in the same way that christians send those email chains about imminent persecution. I don't own a gun but fully support the 2cd amendment and removing the second amendment is certainly not a part of any party's platform.

But there should be some common sense requirements for owning a weapon. The term "arms" itself is vague and requires interpretation. Obviously tanks and suitcase nukes shouldnt be freely available and as technology advances you will find more and more lethal delivery systems brought down to the man-portable level. The definition of legal arms will always require modification and interpretation.


I fully support the Second Amendment (none / 0) (#17)
by Jeralyn on Sat Sep 20, 2008 at 11:56:42 PM EST

and always have. As far as I'm concerned, it's one away from the 4th and I don't believe in giving up any constitutional rights.


: i fully support the 2nd amendment (none / 0) (#30)
by cpinva on Sun Sep 21, 2008 at 09:03:48 AM EST

as well. jeralyn, have you joined your local, "well regulated" militia yet?
yeah, i kind of thought not. funny how that part gets brushed over, by those who contend that the madison intended every nut job in the country to be able to own a gun, just because.
oh right, i know, that didn't mean anything, they just stuck that in there to fill up empty space.
i have shares for sale, in the brooklyn bridge, below par. i expect jeralyn, and all right-thinking members of the NRA, to contact me shortly, to purchase some.

Actually (none / 0) (#12)
by domerdem on Sat Sep 20, 2008 at 10:21:12 PM EST

I have found folks here, and Jeralyn in particular, to be supportive of the Second Amendment.


UM, FYI (5.00 / 1) (#20)
by flyerhawk on Sun Sep 21, 2008 at 12:36:25 AM EST

a Democratic Senate confirmed Clarence Thomas, Anton Scalia, and William Reinquist.

David Souter was not appointed by Reagan. He was appointed by George Bush who followed it by appointing Thomas.

OTOH, Bill Clinton was able to get Ruth Ginsburg and Steven Breyer appointed to the Supreme Court with a Republican Senate.

You're certainly correct that you have no way of knowing who Obama would appoint to the court. But anyone who has paid even a little bit of attention would know that McCain's BEST choice would be worse than Obama's WORST choice.

If you don't know that already you are lying to yourself.


Can anyone think of one president ... (none / 0) (#22)
by FreakyBeaky on Sun Sep 21, 2008 at 01:09:43 AM EST

... that has had his SCOTUS nominations stonewalled by the Senate? Serious question.


Nixon (Carswell) and (none / 0) (#23)
by oculus on Sun Sep 21, 2008 at 01:14:25 AM EST

Reagan (Bork).


: Right, but I mean *stonewalled* ... (none / 0) (#25)
by FreakyBeaky on Sun Sep 21, 2008 at 01:24:43 AM EST

... as in all of them. Like some are suggesting a Democratic Senate could do to a President McCain's picks. The occasional Borking wouldn't be enough (and given the recent penchant to pick justices with thin records who won't give straight answers to tough questions, I'll wager it ain't going to happen again soon).

If your options are (none / 0) (#28)
by lilburro on Sun Sep 21, 2008 at 07:32:44 AM EST

to choose one person to make Supreme Court appointments, or to choose 60 people to get together to make Supreme Court appointments (by playing defense), why would you choose the most difficult route? Yes, it is within Pelosi's power, for instance, to impeach Bush. But she won't. And the Democratic Congress is not going to get it together enough to kick back dangerous McCain appointments. The process would be miserable, and probably a disaster politically for Democrats.

Getting decent Justice appointments with President Obama will be as easy as a soft pitch down the middle. Getting them with President McCain will be like playing a pinball game from hell.


Which of Sunsteen writings about Roe (none / 0) (#31)
by Molly Bloom on Sun Sep 21, 2008 at 09:23:48 AM EST

The one where he said it should NOT be overturned, even though he disagreed with how the majority reached its decision?


Supreme Court Nominations (2.00 / 1) (#32)
by codekeyguy on Sun Sep 21, 2008 at 10:27:15 AM EST

Different strokes for different folks. Some people feel a McCain win will DESTROY the court for the next CENTURY. Others (a minority here, it seems) would feel an Obama win would do the same.
While SC nominations are a minor consideration to me, consider Anne's (#2 above) post. You never know till they (1) get on the court, and (2) they make a few rulings.
I wonder how all the Obama fans will react if he chooses, and gets approved, centrists who then swing hard right. I would pay good money for a seat at that table!!!!
(disclaimer-I'm totally a McCainiac)

so, in essence, (1.50 / 2) (#27)
by cpinva on Sun Sep 21, 2008 at 06:01:34 AM EST

Should McCain win, the radical right will call in its chit and the price will be our Supreme Court justices.

you're saying that even with a clear majority in both houses, the democrats are so completely spineless, they'll cave in to whatever a pres. mccain wants?

wow, imagine what that same spineless majority would do for a pres. obama! now that is a scary thought!

given your opinion of democrats, as jellyfish, why would you continue to support them jeralyn?

: hm (none / 0) (#33)
by connecticut yankee on Sun Sep 21, 2008 at 09:47:29 PM EST

What an odd comment.
As has been noted in this thread over and over again, president's tend to have their way with their court picks. And it's more than abortion at stake, it's the seperation of church and state. With a more conservative court you could find YEC creationism being taught in science class and other odd things.

What blows me away (none / 0) (#21)
by flyerhawk on Sun Sep 21, 2008 at 12:41:38 AM EST

is that so many liberals are ignoring the fact that, with the right President, we could see half the court leave and be replaced with much younger progressive Justices.

Ginsburg is well to the left of Kennedy. (none / 0) (#29)
by Don in Seattle on Sun Sep 21, 2008 at 08:31:35 AM EST

But your larger point stands: she's 75.