On Tuesday, the WSJ ran two articles by Jess Bravin examining the approach to judicial nominations likely to be taken by each of the major presidential candidates. The articles provide a good side-by-side comparison of the candidates.
In "Barack Obama: The Present Is Prologue," Bravin writes:
On legal matters, including Supreme Court appointments, an Obama administration would likely be shaped by its leader's strong convictions on constitutional law. As in other areas, Sen. Obama's jurisprudence points to a change from the "strict constructionist" philosophy advocated by Republican presidential contenders from Richard Nixon to John McCain.In the other story, "John McCain: Looking to the Framers," Bravin writes:
Precedents, text and other legal tools can provide a just outcome in "95% of the cases," Sen. Obama said before voting against confirming chief-justice nominee John Roberts. But for the "truly difficult" cases that remain, the "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." . . .
"I appreciate the temptation on the part of Justice Scalia...to assume" that if the 18th century text is followed "without question or deviation...all good will flow," Sen. Obama writes in his book, "The Audacity of Hope." "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document."
As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School.
In judicial nominations, Sen. McCain is likely to rely on advice from the Republican legal establishment, which has helped pull the court firmly to the right in recent years. Backers say that as president, Sen. McCain would use his "gut instinct" to make the final cut among qualified candidates.
"He's going to count on his advisers, people like Ted Olson [the litigator who won the Bush v. Gore case], to tell him that the person has a good law background," says Sen. Kyl. Sen. McCain likely "will be looking more at the kind of character the individual has."
Possible candidates could include federal appeals judges Janice Rogers Brown, Brett Kavanaugh, Priscilla Owen and William Pryor, former judge J. Michael Luttig and Paul Clement, a former Bush administration solicitor general. . . .
Sen. McCain's emphatic pledge to name committed, closely vetted conservatives to the bench aimed to assuage worries among conservative intellectuals that, faced with an opposition Senate, Sen. McCain might compromise with Democrats on judicial nominations.The stories also contain some other interesting tidbits. for instance, Bravin reports that Senator McCain has pair relatively little attention to judicial nominations in the past, even deferring to Arizona's other Senator on district court judgeships. Bravin also cites Douglas Kmiec, a former Romney advisor, as among those supporting/advising Obama on legal issues.