Look For Many Differences Regarding Judicial Appointments Between McCain And Obama

The ideological makeup and personal attitudes of federal judges have far reaching implications on American society outlasting presidential terms in the process. Who Obama or McCain selects for these positions are extremely important to America.

The rhetoric is familiar concerning what determines and who will be appointed to the federal courts in either an Obama or McCain administration. Since Ronald Reagan's first inauguration in 1981, the right wing of the Republican Party has demanded that presidents appoint strict constitutionalists. They abhor ''activist judges'' who legislate from the bench. Judges should interpret the Constitution and not try to amend it in any way. Conservative scholars don't regard the U.S. Constitution as a ''living, breathing document.'' Progressive or liberal legal scholars and supporters do advocate an activist type of judge as a last bastion against unfairness and inequality. Federal judges must protect and save the average American from corporations, medical malpractice and the like. They must stand up to employer discrimination based on race, gender and sexual orientation. During their recent years in the Senate, McCain and Obama have been at opposite ends regarding the nominations of John G. Roberts Jr. as chief justice to the U.S. Supreme Court and Samuel A. Alito Jr. as an associate Supreme Court justice. McCain has supported both of these nominations while Obama has opposed them. However, the Arizona senator hasn't always had the undue devotion of conservative judicial activists. Case in point: In 2005, McCain joined with six other Republican senators and seven Democrats to broker a compromise regarding Bush's appeals court nominations. The Democrats were filibustering some of President Bush's nominees. This Gang of 14 group was able to avert the impasse by brokering a deal where some other conservative nominees got dropped from consideration in exchange for the Democrats ending their filibuster. Although the deal ended the impasse, many conservative leaders were highly critical of McCain's role in this deal and openly worried whether he would use judicial appointments as bargaining chips on other issues if he were elected president someday. McCain has tried to quell their doubts by announcing an advisory committee on the courts comprised of former solicitor general Theodore B. Olson and Charles J. Cooper, who had been influential in selecting reliable conservative judicial appointees in the Bush and Reagan administrations. However, fellow Republican Senator Arlen Specter of Pennsylvania says that McCain has never been particularly interested in the courts and who was appointed to serve on them. ''It's sort of something far afield because his interests are otherwise,'' Mr. Specter said.'' Unlike McCain, Obama is a lawyer and is completely immersed in legal issues. He wants judges to have a progressive view of the Constitution. He mainly opposed Judge Alito because he consistently took the side of the powerful against the powerless and didn't seem to have a high regard for individual civil liberties. Obama also expressed the view that Alito preferred a strong executive branch having power and control over individual people. On March 3, Obama spoke of what qualities that he would look for in appointing a Supreme Court justice and admiringly remarked of Earl Warren's tenure as Chief Justice. Warren was instrumental in the 1954 ruling of Brown vs. Board Of Education outlawing school segregation. Obama explained it in this manner: ''Chief Justice Warren had the wisdom to recognize that segregation was wrong because of precise sociological effects and more so because it was immoral and stigmatized blacks.'' Possible Obama appointees to the Supreme Court include Sonia Sotomayor, who is an appeals court judge in New York. Harold Hongju Koh is the dean of the Yale Law School. He was a former human rights official in the Clinton State Department and an esteemed legal scholar. He is also of Asian-American heritage. Other names that have been mentioned are Merrick B. Garland of the Washington-based appeals court, Barrington D. Parker Jr. of the New York appeals court and Judge Diane P. Wood of the Chicago appeals court. Possible names in a McCain presidency that would receive consideration for the Supreme Court are Michael W. McConnell from Salt Lake City, Utah; Maureen E. Mahoney, who is a Washington lawyer that has argued dozens of cases before the Supreme Court as a deputy solicitor general. She has been compared to Chief Justice Roberts in that she has successfully argued cases before the nation's highest court. If McCain really wanted to live up to his maverick reputation, he could appoint Judge Alex Kozinski from the California appeals court. Kozinski is described as a libertarian in philosophy. There are 12 regional appellate courts. 167 judges serve and about 60 percent are Republican appointments because a Republican president has occupied the White House for 20 of the past 28 years. The average age of Republican appellate appointees is below 60 and 64 for Democratic justices.