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McCain and Obama: The Judges Presidents Choose

Paul M. Collins, Jr. is Assistant Professor of Political Science at the University of North Texas. He is author of Friends of the Supreme Court: Interest Groups and Judicial Decision Making which explores how organized interests influence the justices’ decision making, including how the justices vote and whether they choose to author concurrences and dissents. In this article, Collins discusses the differences between John McCain and Barack Obama relating to their likely appointments to the federal courts.

One of the most significant choices presidents make involves the selection of federal judges. Through these decisions, presidents, with the advice and consent of the Senate, are able to leave their mark on the American political system long after they leave office. In the last forty years, each president has appointed an average of two Supreme Court justices, whose service on the Court lasts about 26 years. Equally, if not more importantly, each president has appointed an average of more than 200 judges to the U.S. Courts of Appeals and the U.S. District Courts, who typically serve more than two decades on the bench. While less visible than the Supreme Court, these lower federal courts play a major role in the fate of legal and public policy. In fact, the vast majority of appeals in the federal court system are terminated in the U.S. Courts of Appeals, making these institutions the de facto courts of last resort in the federal judiciary.

Given the fact that the selection of federal court judges is one of presidents’ longest lasting legacies, the question remains: what types of judges will the presidential candidates, John McCain and Barack Obama, nominate to the federal bench? One fairly non-controversial factor is immediately apparent: both candidates will nominate qualified judges who will survive the scrutiny of the Senate confirmation process. In addition, it is likely that both candidates will seek to diversify the federal bench in terms of its racial, ethnic, and gender composition. Beyond these similarities, the presidential candidates exhibit stark differences in terms of their potential judicial nominations.

The primary factor that distinguishes the two presidential candidates centers on the ideologies of their likely judicial nominees. McCain, who is more outspoken about his potential judicial selections than Obama, would attempt to appoint conservative judges who fit the molds of Chief Justice John Roberts, former Chief Justice William Rehnquist, and Justice Samuel Alito—three of the most conservative justices to serve on the Supreme Court in the past forty years. Conservative judges tend to support restrictions on civil rights and liberties, favor the expansion of government funding to religious institutions, oppose affirmative action programs, and side with the interests of the states over the federal government in federalism disputes. While it is difficult to predict exactly who a president would appoint, potential Supreme Court nominees in a McCain administration might include District of Columbia Circuit Court of Appeals Judge Janice Rogers Brown, Fifth Circuit Court of Appeals Judge Emilio Garza, Fifth Circuit Court of Appeals Chief Judge Edith Hollan Jones, former Fourth Circuit Court of Appeals Judge J. Michael Luttig, and former U.S. Solicitor General Theodore Olson.

Obama would likely move to appoint liberal or moderately liberal judges who share the judicial philosophies of Justice Ruth Bader Ginsburg and Justice John Paul Stevens. Liberal judges tend to reject limitations on civil rights and liberties, favor a clear division between church and state, endorse affirmative action programs, and support the interests of the federal government over that of the states in federalism disputes. Potential Supreme Court nominees in an Obama Administration might include District of Columbia Circuit Court of Appeals Judge Merrick Garland, Michigan Governor Jennifer Granholm, Massachusetts Governor Deval Patrick, Second Circuit Court of Appeals Judge Sonia Sotomayor, and Ninth Circuit Court of Appeals Judge Kim McLane Wardlaw. Some have even entertained the potential nomination of New York Senator Hillary Clinton, although I think that is a rather far-fetched possibility.

A second and related issue that distinguishes the two candidates involves the politics of abortion. While neither candidate has indicated a willingness to use support for or against a woman’s right to choose as a litmus test, it is very likely that McCain would push to appoint judges who would restrict access to abortion, while Obama would attempt to appoint judges who oppose most restrictions on access to abortion. While I am confident that it is extremely unlikely that Roe v. Wade will be overturned by the Supreme Court because its central holding—that the right to privacy encompasses a woman’s decision to have an abortion—is embedded within American political culture, the ability of judges to expand or restrict access to abortions is nonetheless a powerful authority. This fact will not be lost on interest groups, which will elevate the abortion issue in their efforts to sway the selection of federal judges though both grassroots lobbying efforts and direct contact with members of the Senate. The high levels of interest group conflict over the next president’s judicial nominees will be made apparent to the American public as organized interests run internet, radio, and television ads centering on the next Supreme Court vacancy.

Finally, there is a pragmatic issue that must be kept in mind when discussing the presidential candidates’ potential judicial nominations. That is, it is very likely that the Democratic Party will not only maintain its Senate majority, but also expand the size of its majority by picking up additional seats in the 2008 election. This bodes better for Obama than McCain in terms of their ability to appoint judges with relatively strong ideologies to the courts. Simply put, it is very unlikely that a Democratically-controlled Senate will confirm an extremely conservative judge. However, there is little reason to believe that a Senate controlled by Democrats would interfere with Obama’s attempts to appoint strongly liberal judges. Given this reality, it is likely that McCain would have a difficult time appointing judges in the mold of Alito, Rehnquist, and Roberts, while Obama would have little trouble appointing judges who mimic Ginsburg and Stevens.

Presidential elections are about many things and, while the judges presidents choose are rarely at the forefront, judicial appointments nonetheless allow presidents to shape the American political system long after they leave office. In all likelihood, we will see two or more retirements from the Supreme Court in the next few years. The most obvious candidates for retirement are Justice Stevens and Justice Ginsburg, who are 88 and 75 years old, respectively. Both of these justices regularly vote with the liberal bloc of the Supreme Court, thereby giving the next president the power to substantially shape the future of this august institution. Moreover, history tells us that the next president will likely appoint more than 200 lower federal court judges. While less visible than the Supreme Court, these judges also wield considerable power in shaping American legal and social policy. The bottom line is this: Like it or not, there is no doubt that judges are policymakers. Because McCain and Obama differ in fairly substantial ways in terms of the judges they would likely appoint, it will serve the public well to consider the candidates’ potential judicial nominees before entering the voting booth to cast their ballots.

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