When Sen. John McCain (R-Ariz.) was asked Saturday night which member of the U.S. Supreme Court he would not have nominated, the Republican presidential candidate didn’t just name his least favorite justice.
He picked four — the group commonly identified as the more liberal wing of the court, including the two Jewish justices, Ruth Ginsburg and Stephen Breyer — citing their “legislating from the bench.”
McCain’s answer at the Saddleback Civil Forum on the Presidency — an event in a Lake Forest, Calif., church aimed at evangelicals — bothered some Jewish activists.
The issue isnâ€™t that McCain would have wiped out Jewish representation on the court, but rather that he would have eliminated a whole worldview from the justices’ deliberations. And, Jewish communal observers say, the clear contrast the candidates drew on judicial nominees could lead to the issue taking on a higher profile in the campaign.
While McCain zeroed in on the entire liberal bloc, Sen. Barack Obama (D-Ill.) told the forum’s moderator, Pastor Rick Warren, that he would not have nominated Justice Clarence Thomas because he did not believe Thomas was qualified at the time of his appointment. Obama added that he wouldn’t have nominated Justice Antonin Scalia, another of the courtâ€™s staunch conservatives, because “he and I just disagree.”
The potential stakes are high when it comes to the Supreme Court.
The judges McCain said should not have been appointed to the court, including Justices John Paul Stevens and David Souter, really represent centrist viewpoints, not classically liberal positions, said Mark Pelavin, the associate director of the Religious Action Center of Reform Judaism.
“If you take away those votes, by any fair reading, the court would move significantly to the political right,â€ said Pelavin, whose organization generally stakes out liberal positions on domestic affairs — in keeping with what polls suggest are the views of an overwhelming majority of American Jews.
The composition of the court could affect church-state issues such as the permissibility of religious symbols on public property, Pelavin said, noting that two cases last year dealing with the display of the Ten Commandments resulted in a “fractious court.”
Issues of government funding for religion also are sure to be impacted, Pelavin said, pointing to cases making their way up the system dealing with the constitutionality of the “faith-based initiative,” or providing government funding for religiously infused social services.
In addition, he said, jurisprudence “on abortion, a variety of civil rights, affirmative action, environmental protection and the whole question of federalism” as well as the limits of executive power could change with new justices.
Calling the courts a “critical issue” that does not receive the exposure it deserves, Nancy Ratzan, the president of the liberal National Council of Jewish Women, said her organization was “pleased the candidates were so clear about their distinctions and very clear about what kind of judges we need.”
Ginsberg and Breyer “have been justices we’ve admired and appreciated and valued,” Ratzan said. McCain’s openness was “clarifying” and “useful.”
“I thought it was a pivotal moment,” she said.
Jewish Democrats are promising to play up McCainâ€™s answer about the justices.
“It summarizes the stakes of the election,” said Ira Forman, executive director of the National Jewish Democratic Council.
One top Republican Jewish activist, in contrast, doubted that the issue would make much of an impact among Jewish voters in November.
Jews are “overwhelmingly focused on national security” and the “continued vitality of the U.S.-Israel relationship,” with the economy second, said Mark Lezell, the treasurer and a board member of the Republican Jewish Coalition.
The issue of the Supreme Court, he said, is “not a tipping point issue” but one of many others on the Jewish agenda. Lezell noted that McCain has previously said that Chief Justice John Roberts would be a model for his appointments, and argued that the Jewish community should feel comfortable with Roberts because “he has not come to his decisions with an extensive ideology or legislative intent.”
The general counsel of the American Jewish Congress, Marc Stern, said he found nothing particularly new or notable about either McCainâ€™s or Obama’s comments regarding judges, pointing out that it was just a continuation of the politicization of the issue of judicial nominations that began during the Nixon administration and continues to this day.
“Each candidate said what they needed to say for their base,” Stern said. “It would have been surprising if they’d said something” that went against “the religious beliefs of their party.”
But, while emphasizing that it all depended on the specific judge nominated and who he or she was replacing, Stern did say that an additional judge in the McCain mold could have a significant effect on church-state separation cases.
He said a number of conservative judges have been less willing to allow cases on the basis of “psychic harm” arguments in areas such as graduation prayer cases. Thus, such cases may never even get the chance to be heard in the courts, depending on the future makeup of the court.
One Jewish legal observer who asked not to be identified noted that an Obama pick could disappoint some in the Jewish community on security-related issues. For example, the expert pointed out, some Jewish groups have advocated for treating terrorism as more serious than typical criminal activity in the legal arena — a stance that could be affected depending on future appointments.
Whatever the effect a president can have on the Supreme Court, the issue has not always resonated in past elections. Pelavin said he had been wrong about the potency of the issue in the past, but said 2008 could be different, because both candidates appear to be “willing to make it an issue.” McCain, for instance, specifically asked Warren when he’d be able to talk about the Supreme Court issue during the forum.
The candidates also drew a sharp division on the abortion issue. Obama called himself “pro-choice” but focused on reducing the number of abortions in the country, while McCain emphasized his presidency will have “pro-life policies.”
Ratzan, of the National Council of Jewish Women, somewhat downplayed the exchanges on abortion, saying that neither candidate revealed anything they hadn’t said publicly before. She said she doubted it would be a substantial issue in the election and argued instead that the courts are the “long-term issue” voters should be focusing on.
Forman, of the National Jewish Democratic Council, said that based on anecdotal evidence, he believes a number of Jewish voters, generally strongly “pro-choice,” think McCain’s maverick image means he’s not “pro-life.” Saturday’s forum also clarified that issue, he said.
The forum, one of only four joint appearances scheduled for the candidates in the general election, featured each candidate one-on-one with Warren, with them on stage together only briefly between the two interviews. The event took place at Warren’s evangelical Christian church, but Jewish observers said the site didn’t bother them and they praised Warren’s thoughtful queries and wide scope of questions.
“The questions were good and the candidates were clear,” Ratzan said.
“I donâ€™t think I’d want every candidate forum in a church,” Pelavin said, but added that he thought Warren drew out more interesting answers from the two candidates than anything else they’d offered during previous appearances. And he noted it was significant that while issues such as abortion and gay marriage were on the agenda, so were poverty and the environment — a change from the focus of many other evangelical leaders.
After years of religion becoming “highly politicized,” and evangelical Christians being viewed as beholden to one party, it’s a “healthy sign for our country that we can have an open debate about religion and faith,” Stern said. It “indicates a greater distance between church and state.â€