McCain or Obama: The Election and Its Implications for the Courts

Earlier today, ACS joined the Federalist Society in presenting McCain or Obama: The Election and Its Implications for the Courts, a debate featuring Ilya Shapiro, a Senior Fellow at the Cato Institute, and Jeh Johnson, a Partner at Paul, Weiss.

Mr. Shapiro spoke first and began by citing polling data that he argued revealed a stark difference between how Obama supporters and McCain supporters view constitutional interpretation. He claimed that McCain supporters tended to favor interpreting the Constitution "as it was written" while Obama supporters prefered an interpretation tending toward "justice and fairness." Mr. Shapiro then presented a quotation from Obama indicating a desire to choose judges who have empathy for other people with vastly different lives, backgrounds and experiences. Mr Shapiro argued that this reflected a desire for "activist" judges who will fail to adhere to the Constititon "as it was written." He suggested that Obama would select judges who look to foreign law for guidance and trample upon property rights. Mr. Shapiro noted that McCain would apply the law "as it was written," and that McCain had previously voted to confirm Ginsburg and Breyer, suggesting a desire to approve qualified nominees, rather than resort to a litmus test.

Mr. Johnson began by noting that he admired McCain's efforts to ban torture. He then described his extensive experience in evaluating judicial nominees and candidates on behalf of the New York Bar Assocication. In Mr. Johnson's view, there should be no ideological litmus test. Furthermore, Mr. Johnson cautioned against approving only nominees who have what has come to be the usual Supreme Court justice resume, as "greatness in a Supreme Court justice dos not always present itself in conventional terms." He noted that while ever current Supreme Court justice had previously served on a Circuit Court, no members of the Supreme Court as constituted in 1954 had served as Circuit Court judges. Mr. Johnson cited the Obama quote that had been previously identified by Mr. Shapiro and noted that would-be judges ought to have some real-life human experience and empathy. Furthermore, he argued that the selection of future Supreme Court justices should be conducted with an eye toward balancing the Court's current composition. What is wrong, he asked, with a judge that can identify with other types of people, particularly given the current Court?