There were many revealing moments during the candidates’ forum in Saddleback yesterday. One of them occurred when Pastor Rick Warren asked McCain and Obama which Supreme Court Justices they would not have nominated.
McCain stated that, “with respect” he would not have nominated Justices Ginsburg, Breyer, Souter, and Stevens because they are inclined to “legislate from the bench.” A direct answer to a direct question.
Obama’s answer was full of misdirection. He first named Clarence Thomas as a Justice he would not have nominated. No one doubts that Obama would not have nominated Thomas. But Obama’s reason was disingenuous; he said that Thomas lacked experience at the time of his appointment.
It’s true that Thomas had a limited amount of judging experience or other appellate experience at the time the first President Bush nominated him (in this sense, and this sense only, he was the Barack Obama of the Supreme Court). But Thomas had already made a name for himself at the EEOC as an African-American who did not adhere to the narrative of the civil rights establishment. It’s plain, therefore, that Obama would not have nominated Thomas for the Supreme Court regardless of how much experience he had as a judge. Obama should have admitted this.
Next Obama named Justice Scalia, citing his disagreement with Scalia’s judicial philosophy. Fair enough. Obama also snuck in the fact that both he and Scalia taught law at the University of Chicago. Yeah, and Yogi Berra and Charlie Silvera were both catchers for the New York Yankees.
Obama did not name Chief Justice Roberts and Justice Alito. This is odd. Obama voted against the confirmation of both men, so clearly he would not have nominated either one. But Obama realizes that Roberts and Alito were popular nominees, which probably explains why he declined to name them.
Only after Warren asked Obama about Roberts did Obama allow that he would not have nominated him. He added that the way Roberts has “operated since he went on the bench confirms the suspicion” that caused him not to vote for the Chief Justice’s confirmation. Roberts, of course, does not “operate;” he decides cases. The fact that Roberts doesn’t decide some important ones the way Obama likes shouldn’t cause the candidate, a law professor after all, to demean the Chief Justice in this way.
In any case, what’s most telling here is Obama’s unwillingness or inability to do what McCain did — identify the four (or five) Justices he obviously wouldn’t have nominated, and articulate the simple and obvious reason. Instead, Obama gave an incomplete answer coupled with an irrelevant reference to Thomas’ level of experience, a plug for his status as a “professor,” and (after prompting) a cheap shot at Roberts.
Obama is simply not as comfortable as McCain when it comes to answering questions. This is due in part to the fact that McCain’s has been dealing these kinds of questions on the back of his bus for years. But it’s also due, I think, to the fact that Obama understands that his liberalism is outside of the mainstream and, if revealed, will cost him votes. Because virtually any question, no matter how simple and straightforward, raises the threat of enabling voters to ascertain who he really is, Obama often can’t quite get comfortable. Instead, he feels the need to dance or to withhold information.
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