NYT's SCOTUS Contrast: McCain's Conservative 'Fealty' vs. Obama's Non-Ideology

May 28th, 2008 4:10 PM

New York Times legal reporter Neil Lewis's Wednesday filing was headlined "Stark Contrasts Between McCain and Obama in Judicial Wars."

But the truly "stark contrast" was how Lewis treated the respective camps with regard to their hypothetical Supreme Court nominations. Lewis painted an uninvolved McCain as paying "fealty" to "the conservative faithful," while an engaged Obama would be merely trying to reverse the "current conservative dominance of the courts" without displaying any liberal ideological thrust of his own.

Back in 2003, Lewis identified Republican Sen. Orrin Hatch as a "leading conservative," but Sen. Ted Kennedy was simply "Democrat of Massachusetts."

His Wednesday report showed a similar contrast, with tons of "conservatives" (18 in all in a 1,400-word story) emanating from the McCain camp but not a single "liberal" to be found around Obama.

The presidential election, lawyers and scholars agree, will offer voters a choice between two sharply different visions for the ideological shape of the nation's federal courts.

Senator John McCain of Arizona, the presumptive Republican nominee, has already asserted that if elected he would reinforce the conservative judicial counterrevolution that began with President Ronald Reagan by naming candidates for the bench with a reliable conservative outlook.

Senator Barack Obama of Illinois has been less explicit about how he would use the authority to nominate judicial candidates, but he would be able to -- and fellow Democrats certainly expect him to -- reverse or even undo the current conservative dominance of the courts.


Despite his record, Mr. McCain has been obliged to deal with the burden that falls on any Republican candidate to deal with the party's conservative wing, which demands commitment to its goal of tilting the courts rightward. In a speech on May 6 at Wake Forest University, Mr. McCain took pains to use the language of the conservative faithful, notably inveighing against "activist judges," to signal his dedication to continue placing conservative judges on the courts.

In 2005, Mr. McCain aroused the suspicion of some conservatives alert to ideological heresy when he joined six other Republicans and seven Democrats in the Senate to form a compromise on appeals court nominations to break a nasty deadlock. Under the plan brokered by the group, known as the Gang of 14, the Democrats agreed to end their filibuster blocking some of Mr. Bush's appeals court nominees, in exchange for other conservative nominees being dropped from consideration.

Although the plan averted an impasse, some conservative leaders spoke of it in terms of a near-betrayal and said it suggested that as president, Mr. McCain might use judicial appointments as bargaining chips on other issues.

In response, Mr. McCain has chosen to do everything in his power to demonstrate his fealty to their cause.

He announced an advisory committee on the courts headed by Theodore B. Olson, a leading conservative lawyer and former solicitor general, that is full of people like Charles J. Cooper, who had been influential in selecting reliable conservative nominees in the Bush and Reagan administrations.

In an interview, Mr. Olson said he was confident that Mr. McCain's nominees would be carefully screened to assure that they were in the mold of reliably conservative recent Supreme Court appointments like Chief Justice Roberts and Justice Alito.

Lewis implied Republican presidents have been ignorant of the nuances of the law, mere puppets of ideologically conservative lawyers, as opposed to Obama's "long and deep interest in the courts and the law," a charge he backed up by quoting yet another unlabeled liberal, law professor Cass Sunstein, an Obama adviser.

Like Mr. McCain, neither Mr. Reagan nor Mr. Bush was a lawyer and, adopting the same rhetoric as Mr. McCain is now using, they became enthusiastic instruments of those conservative lawyers who were diligent in choosing conservative judicial nominees.

Mr. Obama, on the other hand, is a lawyer and has had a long and deep interest in the courts and the law. Cass R. Sunstein, a professor at the University of Chicago Law School and an Obama adviser, said in an interview that because Mr. Obama had taught constitutional law for 10 years at Chicago, "he is immersed in these issues."

"The first thing to know," Professor Sunstein said, "is that he knows this stuff inside and out, and he has the credentials to be easily appointed to the court himself."

From his remarks in the Senate opposing the nominations of Judges Roberts and Alito, among others, Mr. Obama made clear that he would look to name judges with an expansive, progressive view of the Constitution.

How about writing "liberal view" instead of the weasel-sounding "progressive view," to balance the several hundred references to conservatives that Lewis made earlier? Indeed, Lewis went on to name five hypothetical Obama Supreme Court nominees, but labeled none of them as liberal.

He even got another unlabeled liberal to deny that Obama would be liberal, or as Lewis puts it, "ideological."

Prof. Charles J. Ogletree Jr. of Harvard Law School, who taught both Mr. Obama and his wife, Michelle, sought to dispel the idea that Mr. Obama's nominees would be especially ideological. "It seems likely to me that he won't have an agenda of trying to pack the courts to necessarily move it in a different direction," Professor Ogletree said in an interview.