There's nothing like a bunch of 5-4 Supreme Court decisions to clarify one's mind on the stakes for the next election. I join with my fellow troglodytes in cheering the result in the D. C. gun ban case and the Millionaire's Amendment case; and I thought yesterday's decision striking down the death penalty for child rapists was a stinker, as was the outcome of Boumediene v. Bush a couple weeks back.
On the wrong side on all four cases: Justices Stevens, Souter, Ginsburg, and Breyer. Consistently on the side of the angels: Roberts, Alito, Thomas, and Scalia. (Kennedy always on the "5" side, right or wrong.)
The tedious Bill Moyers quotes the major candidates on their favorite current Justices, a reasonable indicator of the kind of Justice they might nominate, should they get the chance:
JOHN MCCAIN: I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me.
BARACK OBAMA: I think actually Justice Breyer and Justice Ginsburg are very sensible judges…I think that Justice Souter who was a Republican appointee, is a sensible judge. What you're looking for is somebody who's going to apply the law where it's clear.
The math isn't particularly hard here. Here's Ed Whelan with more on Obama's stated philosophy:
Although Obama has served in the Senate for barely three years, he has already established a record on judicial nominations and constitutional law that comports with his 2007 ranking by the National Journal as the most liberal of all 100 senators. Obama voted against the confirmations of Chief Justice John Roberts and Justice Samuel Alito, and he even joined in the effort to filibuster the Alito nomination. In explaining his vote against Roberts, Obama opined that deciding the "truly difficult" cases requires resort to "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." In short, "the critical ingredient is supplied by what is in the judge's heart." No clearer prescription for lawless judicial activism is possible.
Note that Obama has expressed his disagreement with the Court's decisison in the child rape case. That's a real cheap disagreement, especially when he's more or less committed to (should the opportunity arise) nominating Justices who would vote the same way. As Prof Althouse puts it:
So, Obama has (cleverly or sincerely) deprived McCain of an issue, it seems. And yet the most relevant question is Supreme Court appointments. You might think that it's rather predictable that Obama, given the opportunity to nominate a new Justice, will choose someone who would almost surely have joined today's majority. Ask him: You've said you oppose the Supreme Court's decision in Kennedy v. Louisiana, but does that mean you will try to pick Justices in the mold of Roberts, Scalia, Thomas, and Alito. See? You don't need to ask. You already know the answer.Ah, but there's always a kicker in this election. She continues:
But don't be too confident that McCain would choose Justices who would have joined today's dissent. I wouldn't bet on that either.The thing is: we pretty much have to bet, one way or the other. Yes, McCain might nominate another Souter (as George H. W. Bush did), or another Stevens (as Gerald Ford did). But Obama is near-certain to nominate in the Ginsburg/Breyer mold.
If McCain were smart, he'd flog this issue relentlessly.