The Presidential Election and the Subsequent Shaping of the Supreme Court

October 6, 2008 |  Tagged | Comments Off on The Presidential Election and the Subsequent Shaping of the Supreme Court

On Friday September 26th, following the moot court trial of FCC v. Fox Television Stations that Mark wrote about here and for the Marshall-Wythe Press, there was a panel discussion regarding the 2008 Presidential contest between Senators Barack Obama and John McCain and how the election’s outcome would affect the Supreme Court.  The panelists were Walter Dellinger, John McGinnis, David G. Savage, Miguel Estrada, and Ted Shaw.

The panelists began the discussion by speaking in very general terms about the possibilities for either an Obama or McCain administration to shape the court.  Mr. McGinnis brought up a number of statistics to make his points.   He noted that the justices that would be considered ideologically liberal were much older than their conservative counterparts, on average.  He said, then, that under either administration there would more likely be seats vacated by the more liberal justices by “involuntary departures,” as he put it.  This would undeniably be to Senator McCain’s advantage should he be elected.  Mr.McGinnis further noted that Senator Obama would likely have a much easier time getting his nominees through the Senate, because it is estimated by the current polling available that the Democrats will have anywhere from 55 to 58 Senate seats after the 2008 election.  Further adding to Senator Obama’s advantage, according to Mr. McGinnis, is the speculation that one or two of the more ideologically liberal justices would like to retire, but would opt not to under a McCain administration.

The panelists also discussed the candidates’ favorite justices.  Senator Obama has cited Justices Breyer, Ginsburg, and Souter as “sensible”, whereas John McCain has cited Justices Roberts and Alito as his favorite justices.  Later in the discussion, Mr. Shaw engaged Mr. Estrada in a debate on the partisan nature of judicial nominations by saying “I want you to come back at me on this.”  Mr. Estrada had earlier argued that the contrasts between the Justices that Senators Obama and McCain would place on the bench would not be as stark as was being claimed by several of the panelists.  He decried the portrayal of the nominations in such an ideological, partisan manner because he believes it greatly damages the court’s reputation and reduces the logical, but divergent conclusions that the justices reach to simplistic partisanship.  In response, Mr. Shaw had said that he thought Mr. Estrada’s claims that judicial nominations aren’t a “my team against your team thing” were not really true.  He seemed to imply that because the law is pronounced and interpreted by people that it will always be shaped by their worldview and ideology and therefore, a partisan team analogy is appropriate.

Mr. Dellinger and Mr. Shaw expressed their hope that either administration would choose justices that had more worldly experience than the current justices who had a lot of experience as judges and academics, but as a collective body have very little experience living in the “real world.”  Mr. McGinnis argued that the legal reasoning in the opinions of this Court has been better than most of its predecessors, particularly the Warren Court, for which Mr. Dellinger had pronounced his reverence. Mr. Dellinger scoffed and referred to Bush v. Gore, which drew a laugh from the room.  Mr. Dellinger expressed his belief that justices should live life outside of legal academia and judges’ chambers in order to properly interpret the law, because the law applies to real people.

The discussion of the current Court’s superior legal reasoning, or lack thereof, lead Mr. Shaw to discuss the Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1, et. al. Mr. Shaw argued that the court got it wrong in this case and he could see no way they could have logically come to their conclusions.  Mr. Estrada responded “I don’t know, maybe, by reading the 14th Amendment.”  Mr. Dellinger then quipped that if Mr. Estrada could not see the difference between Brown v. Board and Parents v. Seattle (the former dealing with racial discrimination and the latter dealing with a voluntary school integration program) then he must have “missed the part on Sesame Street where they played ‘One of These Things is Not Like the Other.'”  In the end, this 1L found himself agreeing with Mr. Shaw and Mr. Dellinger that context matters and that the law should not be read as mere ink on parchment that can be applied uniformly in all circumstances, but that the people affected by those laws ought to be considered.

Photo courtesy of Flickr user bikingtobeantown.

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