The Candidates and the Supreme Court

In last night's third presidential debate, the candidates clashed over the Supreme Court. The focus was on Roe v. Wade, but Obama and McCain's answers revealed a great deal about their judicial philosophies.

With so many 5-4 decisions these days, and Justice Anthony Kennedy as the swing vote, the court is in a precarious place. John Paul Stevens, 88, and Ruth Ginsburg, 75, are the two oldest justices. Clarence Thomas is 60, Samuel Alito and John Roberts are both under 60. The next president will almost surely change the face of the court, and it the impact on the rights of prisoners and criminal defendants could be enormous.

Debate video after the jump.

McCain has said he would appoint judges in the Roberts-Alito mold, which scares the hell out of me. He said last night he does not believe in using a litmus test to appoint justices; he would focus on qualifications, not ideology. Then, in one sentence, he tried to have it both ways.

"I would consider anyone in their qualifications," McCain said. "I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test."

Obama also said he opposed a litmus test for justices, but said Roe v. Wade was correctly decided - meaning it was probably a litmus test for him as well. His arguments, however, were well-reasoned. He was a constitutional law professor for a decade, and sounded like it last night. He gave one of the clearest defenses of Roe v. Wade I've ever heard: "Our Constitution has a right to privacy in it, that shouldn't be subject ot state referenda, any more than our First Amendment rights should be subject to state referenda."

Obama wants judges who will interpret the Constitution fairly, but he wants them to think about ensuring equal rights in today's world. Oh my god, a judge who thinks about reality? What could he be thinking.

His statements last night have already infuriated many on the other side. "I will look for those judges who have an outstanding judicial record, who have the intellect and who hopefully have a sense of what real-world folks are going through."

So how would their nominees change our criminal justice system?

McCain's Alito-Roberts clone would support the erosion of habeas corpus - the right of a prisoner to challenge their detention as unlawful. In June, the Supreme Court decided 5-4 that Guantanamo detainees have the right to challenge their detention in U.S. courts. Alito and Roberts were in the minority. McCain called it "one of the worst decisions in the history of this country."

"We are now going to have the courts flooded with so-called ... habeas corpus suits against the government, whether it be about the diet, whether it be about the reading material. And we are going to be bollixed up in a way that is terribly unfortunate because we need to go ahead and adjudicate these cases," he said at a town hall meeting in New Jersey.

Obama supports habeas for detainees. But both candidates disagreed with the court's decision to overturn a Louisiana law which allowed the death penalty in child rape cases.

While McCain has supported President Bush's radical right-wing appointments to federal courts, Obama voted against a few of the most extreme, and appears to be more of a centrist on the courts. From the New York Times:

Mr. Obama has said he wants justices who have “the empathy to recognize what it’s like to be a young teenage mom” — as well as to be gay, poor or black. He has promised to make “preserving women’s rights under Roe v. Wade a priority as president.”

At the same time, Mr. Obama has put distance between himself and legal liberals on issues like the death penalty for child rapists and the constitutionality of gun control. As president, Mr. Obama would probably be more inclined to appoint centrist liberals, like Justice Stephen Breyer, than all-out liberals, like William Brennan or Thurgood Marshall.

And, just to set the record straight, McCain said Obama voted against the nominations of Breyer and Roberts - even though Breyer was nominated ten years before Obama became a Senator. He must have meant Alito and Roberts. Good old FactCheck.org.

Here's the video of the Supreme Court / Roe v. Wade discussion: