McCain offers ominous warnings on Obama’s Supreme Court nominees

July 1, 2008

John McCain spoke to the National Sheriffs’ Association conference today, and suggested the Supreme Court might be less conservative if Barack Obama gets elected.

Ever so briefly, Senator John McCain delivered a back-handed compliment to Senator Barack Obama here today for Mr. Obama’s disagreement last week with a Supreme Court decision that ruled out the death penalty for child rape. But then Mr. McCain got to the point and darkly warned that similar decisions might be forthcoming if Mr. Obama wins the White House.

“It’s a peculiar kind of moral evolution that disregards the democratic process, and inures solely to the benefit of child rapists,” Mr. McCain told the annual conference of the National Sheriffs’ Association. “It was such a jarring decision from the Court that my opponent, Senator Obama, immediately and to his credit expressed his disagreement.”

Mr. McCain quickly moved on. “My opponent may not care for this particular decision,” he said, “but it was exactly the kind of opinion we could expect from an Obama Court.”

I suppose I see the point of the argument here. If Obama’s elected, he’ll nominate left-leaning jurists to the Supreme Court, and those justices may in turn limit application of the death penalty, whether Obama thinks it might apply to a heinous crime or not.

As McCain asked the National Sheriffs’ Association, “Why is it that the majority [in the death penalty ruling] includes the same justices he usually holds out as the models for future nominations?”

This is interesting for a few reasons.

First, it’s a little awkward to hear McCain argue that Obama’s out of the mainstream on judicial thought when McCain and Obama agreed on the same controversial case.

Second, McCain voted to confirm the very same judges who he’s condemning now.

The Obama campaign shot back at Mr. McCain shortly after his remarks to the sheriffs, saying that Mr. McCain had voted for four of the five judges who supported the ruling, “which is why this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of.”

And third, just a couple of weeks ago, McCain was trying to convince some anti-Obama Democrats that McCain wouldn’t necessarily be conservative on court nominees, and boasted of his support for Ginsberg and Breyer. Now, with a different audience, McCain is offering a very different message. I wonder why that is?

Regardless, the more McCain wants to focus attention on the importance of Supreme Court nominees in this presidential election, the happier I am.

That’s some nice and effective rapid response from the Obama camp.

  • “…this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of.”

    More of this please. Call them out as the liars they are, and tie them to the even bigger liar they love all over. Let gravity do the rest.

  • This is why town halls could be nice. He’s such a chronic panderer that even if the media didn’t explicitly point out his flips, they’d be televised for a national audience.

  • I think points 1 & 2 don’t have a lot of weight. A president can’t predict exactly how his appointed justices will rule in every case, and it’s quite likely that Obama’s nominees will look a lot like Breyer and Ginsberg, who sided with the dissent.

    Also, plenty of senators will vote to confirm a justice that they may have little or no common political ground with. It’s supposed to be whether the Senator feels the person is fit for the office, not whether the Senator would have selected that person himself.

    As to the third point, I think you’ve got a little more on McCain, but still–his point may just have been that he’s principled and respects liberal voices, even though he doesn’t agree with them. He’s saying that he’s not a DeLay or Bush kind of hyper-partisan, Republican.

    (FWIW, I am a big Obama fan. It’s just that, as a lawyer, I don’t think these are necessary the best arguments against McCain).

  • “On the recent Supreme Court case whose underlying tragedy I will use to score political points with you today and with which I will try and stir your outrage, Barack Obama and I had the exact same reaction. So you should love me and fear him. If that doesn’t make sense, just remember what I know you know from being sheriffs. It was a case about rape. Obama is black. Black men are rapists. Vote John McCain because I proise a cleaner kind of politics. Except when I don’t. Now dammit, where’s my walker?”

  • Dudley makes good points. The fact that McCain voted for four of the justices doesn’t necessarily imply that he approves of their jurisprudential approach; it just means that, for whatever reason, he thought that a vote in favor was politically preferable to a vote against. McCain’s reasons for supporting Souter and Kennedy is obvious: both were Republican appointees and therefore it’s given that McCain would vote in favor of them (no one expected Souter to turn into the liberal he’s become). Breyer and Ginsburg were both Clinton appointees; McCain could have simply felt that they were preferable to any alternative Clinton would have nominated, he may have supported them in the hopes of building up bipartisan good-will to be spent on his own legislative projects, or he may simply have not cared enough to oppose them. None of this implies any personal endorsement on McCain’s part.

    Of course all of that undermines McCain’s argument that he wouldn’t necessarily be conservative on appointments just because he supported Breyer and Ginsburg. Supporting a nominee as a senator is really no indication that one would nominate a judge of a similar jurisprudential outlook as president. I’m sure McCain supported Scalia and Roberts, too, so his votes in favor of Clinton’s nominees don’t really carry any predictive value. Of course his nominees would be more conservative than Obama’s, but I doubt the anti-Obama Democrats thought otherwise.

  • So McCane is essentially arguing that we need to expand the death penalty to include crimes besides murder.

    But he can’t come out and say that, because … why?

    By my count this is the second time McGramps has gone after Obama when they are in agreement or Obama has complimented him. This could be fun.

  • While I have no difficulties with the SCOTUS decision referred to, I *am* concerned about potential Obama judicial nominees overturning DC v. Heller, with it being such a narrow 5-4 decision. OTOH, I don’t want to see Roe v. Wade chipped away any further than it already has been. So called “Gun Control” has been a consistent loosing issue for Democrats for years and should be abandoned. If Obama doesn’t nominate a stalwartly pro-RKBA Democrat, like Sen. James Webb, to the VP slot, then I’m staying home on election day. Though in Texas that probably doesn’t matter; I’m reasonably sure my home state will vote for McCain no matter what I (or Sen. Obama’s campaign) do.

    I used to give Democrats a pass on this in the past, but I will no longer do so, and especially not after the “Great New Orleans Gun Grab” in Katrina’s aftermath.

    I am actually further left than Sen. Obama on most issues, but his spotty RBKA/2A stances are most worrisome to me. His VP choice could go a long way to reassuring me.

  • I suppose I see the point of the argument here. If Obama’s elected, he’ll nominate left-leaning jurists to the Supreme Court, […] — CB

    Except that… The two judges most likely to be replaced during Obama’s Presidency are Stevens and Ginsburg. Who are already left-leaning. That is, their replacement, *by Obama*, would not change the balance in the slightest and McCain’s fearmongering is entirely spurious.

    The only way the balance is likely be changed in the next 4yrs is to the right, by McCain. Unless, of course, Scalia succumbs to his fat or Roberts to his seizures.

  • Well, the general strategy for the McCain campaign is now becoming blazingly apparent. He’s getting zero traction on his economic policies, Iraq or anything else. Even his attempt last week to make this a referendum on character really didn’t play at all well.

    So now the McCain camp is looking for ‘hot-button’ emotive issues. They’re pressing each button one by one – habeas corpus for terrorists, death penalty for child rapists, etc., etc. – in the hope that one of them will ignite the base.

    I think that the thinking goes like this. While Obama is patently a smart, accomplished politician, if he has any Achilles’ heel, it’s a feeling that he just might under his centrist new clothes he’s a soft-on-crime liberal. So the McCainites roll these emotive issues like marbles under Obama’s feet and hope he trips.

    They want to make this a campaign based on emotion and fear, rather than one based on reason and optimism. If they can’t get people enthusiastic about McCain, they’ll try to make people viscerally anti-Obama. The Supreme Court angle of the speech today was a tortuous attempt to make out that an Obama presidency would end up with a SC that coddled child rapists. This is speechifying from the gutter.

    It’s emotive, not to say dirty, politics. But the McCain camp is still looking for to force that Obama statement – on gun control, religion, or the death penalty – that goes against the gut instinct of blue collar Americans.

    So far – much to the annoyance of some progressives – Obama’s made adroit sidesteps into more populist positions. But it has had the effect of taking the progressive shine of the Obama brand. Obama I think can live with that. He’s just concentrating on making sure that McCain has no big populist issues (that Obama’s on the wrong side of) to kickstart his lacklustre campaign.

  • I posted this comment on another site and I’ll repeat it since I don’t know a different way to put it.

    “Senator McCain voted for 4 of the 5 judges who supported this flawed ruling, which is why this attack is particularly disingenuous and nothing more than the same old Bush-style politics that the American people are tired of”

    As a general rule republicans will not hold up nominations of judges if the judge is a good candidate with a proven record. This often extends to “liberal” judges as long as they show the law to be the basis for their judgements republicans will respect the president.

    In my opinion democrats seem to act more partisan and block nominations even if the judge has a solid record.

    What worries me is statements from Obama like he would appoint judges with a “world view.” Isn’t the job of the Supreme court and other courts to judge laws against the constitution and make decisions on that basis? My understanding is that legislation is supposed to be the job of the legislative branch and the judicial branch’s job is interpretation of constituional law.

    If we willingly accept allowing judges to make decisions on their personal views or on “world views” that to me opens up the door to willingly allow our constitutional rights to be eroded if the issue in question does not conform to the current “world view.”

  • Here’s an idea—ask these “sheriffs” which option they would prefer: (1) Spending a couple million dollars per case on fighting every death-penalty conviction all the way to the Supreme Court, or (2) sending these scum to prison for life, with no possibility of parole, no perks, just a simple concrete-block room with a stainless steel toilet-n-sink, a concrete slab with a deep-discount mattress, a clean pair of orange coveralls, and three meals a day that’s just enough to keep ’em alive. No TV; no contact whatsoever with the outside world or any of its creature comforts—just the room-with-no-view and three meals a day”’til death do they part.”

    I’ll wager any amount that those enforcers-of-the-law choose “Door Number Two” by a landslide. The money saved goes into prisons, more law-enforcement personnel on the streets, more cruisers, more Kevlar, … well, you get the picture….

  • not to mention that it was a good decision. I happen to agree with the argument that if you threaten a child rapist with the death penalty, what would stop them from killing the child, since the punishment is the same when he gets caught. It is far easier to get away with a crime when the victim is dead. Thanks to the conservative judges who rules last week that statements from a victim do not count if the perpetrator can’t face the accused. – Even if the micreant caused that death.

  • 13.On July 1st, 2008 at 8:08 pm, Cryos said: As a general rule republicans will not hold up nominations of judges if the judge is a good candidate with a proven record. This often extends to “liberal” judges as long as they show the law to be the basis for their judgements republicans will respect the president.
    In my opinion democrats seem to act more partisan and block nominations even if the judge has a solid record.

    So you’re basing this rule on your general opinion that Republicans are less partisan than Democrats? Where the fuck have you been the last 15 years? Last I looked, Democrats had real reasons for all the Bush appointments they had blocked. Most of them had lousy ratings from the ABA,, the ones with good ratings tended to be former advocates for industries that their appointed position would call on them to regulate. You might not agree with those reasons, but they were stated publicly.

    By contrast, Republicans during the last 2 years of Clinton’s administration blocked every single judicial appointment, without giving any explanation. You remember Clinton? You know, the president Republicans didn’t respect at all? Or Carter, the Democratic president before Clinton? Lots of respect coming from Republicans for him too. “Republicans will respect the president”, my ass. The current batch of Republicans never show respect for anything, they see it as a sign of weakness.

  • Bruno @ 15 actually hit on a point that I think has been wildly underreported. Taking the death penalty case and the evidentiary suppression case together sends a very clear message to perpetrators of serious crimes: go ahead and kill the victim. This is particularly true in crimes that may occur repeatedly or over time, or with a prior threat or other offense. If a criminal can get the death penalty even for a non-murder crime, and any comments or statements of the victim cannot be used against the criminal if the victim is not alive to be cross-examined, the criminal absolutely will be as well off if not better to go ahead and commit the murder, too, in addition to say rape, kidnapping or severe battery. Add the 2nd Amendment decision in and one might wonder how the Right ever got the “culture of life” meme to stick.

  • …just a couple of weeks ago, McCain was trying to convince some anti-Obama Democrats that McCain wouldn’t necessarily be conservative on court nominees, and boasted of his support for Ginsberg and Breyer. Now, with a different audience, McCain is offering a very different message.

    I wish CB would update his Official McCain Flip-Flop List, as necessary. I love linking to that on other blogs when people accuse Obama of being a flip-flopper.

  • Mr. McCain panders ad nauseum —

    Mr. Obama is right and Mr. Mcain is wrong on Supreme Court decisions on illegal torture and the death penalty for heinous crimes including rape and death of children.

  • The argument that the death penalty for child rape is unconstitutional because it would encourage the offender to kill the victim strikes me as pretty silly for a couple of reasons. First, I very much doubt that your average child rapist is going to make a level-headed cost-benefit analysis in the immediate aftermath of the crime on the basis of what level of punishment the state in question imposes on the crime. Moreover, if the offender were to make such an analysis, he’d have to take into account the fact that even if the death penalty is possible for rape, it’s a hell of a lot more likely to be actually imposed if the victim is murdered. Second, and this is the primary point, what does any of that have to do with the Eighth Amendment analysis at all? The constitutional question is whether the imposition of the death penalty is cruel and unusual punishment, not whether it’s a good idea. The argument about incentivizing the offender to kill rather than merely rape might (or might not) be persuasive to a state legislature debating whether to adopt the death penalty for child rape, but it really has nothing in the world to do with whether or not the punishment is constitutional.

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