1.28.2008

What About Judicial Nominees?

A president's choice of judicial nominees, crucial as it is, has been less of a focal point in the 2008 cycle thus far than it seemed in both 2000 and 2004. At least in my perspective.

A few parties have broached the issue along the way, but it hasn't hit prime-time by any means. And candidates, by and large, haven't said much of anything I'd qualify as new or revealing.

Perhaps the issue simply hasn't risen to the surface beyond the ranks of single issue camps like pro-life and pro-choice groups. The primary races have been awash with other crucial issues - Iraq, the specter of recession, healthcare. The basic need to pare down the oversized fields has also been a significant threshold issue.

Today, however, John McCain sounded off in the face of conservative critics of his take on judicial nominees, reiterating the standard support for strict constructionism and adherence to the Constitution, as well as Justices Alito and Roberts. Interestingly, however, he said this:

I asked whether McCain had ever drawn any distinction between Roberts and Alito. "No, no, of course not," McCain said.

McCain seemed to be defending himself in context, but why doesn't he draw any distinction?

He also offered a defense of the notorious Gang of 14 on pragmatic grounds:

"And maybe as an aside, why would I say anything derogatory about somebody like that? What would be the point, after working so hard to get not only those two confirmed, but the Gang of 14 ­ which I know is controversial ­ but our record of getting those judges confirmed that the president nominated, I'm still proud of."

Some well on the political right aren't buying it.

But in the face of it all, we have this piece on judicial philosophies from Stanley Fish, who, quite aptly, cites a string of judicial nominees who wandered off the ranch as years on the bench elapsed after confirmation:

In the end, the only way to tell the difference between conservative and progressive judges may be the Justice Potter Stewart way. You know them when you see them, and when you know them it will be because of the decisions they hand down, not be because of any interpretive theory they may profess, even one they loudly proclaim. And that means that when a candidate loudly proclaims that he or she will appoint judges who promise to be faithful to this or that theory, you will have learned nothing.

Yet who would they nominate? It's still of immense interest to me. Giuliani, long the subject of most judicial nominee stories given his need to reassure a base, tossed out a telling list of judicial advisors back when he was viable. I like the concept of actually naming a few names and would like to see others toss out even hypothetical names.

What about the other candidates? Ron Paul? Mike Gravel? John Edwards?

Would there be noticeable differences in the lists of Obama and Clinton? McCain and Romney?

Would McCain contemplate nominating this guy along the lines of TR's nomination of this guy?

They agree on one thing at least.