Supreme Court, Abortion in the Balance: Obama and McCain Split on Judges

National   |   Steven Ertelt   |   Aug 5, 2008   |   9:00AM   |   WASHINGTON, DC

Supreme Court, Abortion in the Balance: Obama and McCain Split on Judges

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by Dave Andrusko
August 5, 2008 Note: Dave Andrusko is the editor of National Right to Life News and an author and editor of several books on abortion topics. He frequently writes Today’s News and Views — an online editorial column on pro-life issues.

As promised Monday, today we start a series of Today’s News and Views which will convince anyone willing to listen to the facts that Sen. Barack Obama is pro-abortion to the hilt and that Sen. John McCain has never been given proper credit for his 100% voting record on abortion.

When pro-lifers think about the importance of presidential elections, near the very top of the list is the kind of Supreme Court nominee the candidate would send to the Senate. (Lower court appointments are also hugely important.)

The National Journal’s Stuart Taylor provided a comprehensive look at this very question last week. (See

"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."

His analysis is not without flaws. But, while some of the strokes are smudged, Taylor does essentially get the big picture right. Let me list the most important conclusions.

* "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.’"

* McCain favors and Obama opposes the kind of nominees President Bush sent to the Senate.

"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."

With Democrats likely to control the Senate in 2009, "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."

This is not mere conjecture. Obama cited Warren as a judicial model as he campaigned in Ohio last March.

For Obama "adherence to precedent" gives way when adherence will not give him the results he wants. He has said that while "most of the time" conservative and liberal Supreme Court justices will arrive at "the same place," what "matters at the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction will only get you through 25 miles 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."

Taylor points out that McCain rebutted that position in a speech he gave at Wake Forest University.

"These vague words attempt to justify judicial activism," McCain said. "Come to think of it, they sound like an activist judge wrote them."

In his May 6 speech, McCain called judicial appointments "one of the defining issues of this presidential election."

Taylor said that "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.’"

The next President will nominate hundreds of lower court judges who will rule on state legislation promoting or limiting abortion.

"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."

Most of those decisions on state laws will never be considered by the Supreme Court.

The choice could not be clearer.

Obama’s role model is Earl Warren and results-driven jurisprudence. McCain’s nominees would be in the mold of Chief Justice John Roberts, who render their decisions (as McCain said in his Wake Forest University speech) from "the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines."


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