September 22, 2008 in Opinion

A superior Supreme Court record

Linda P. Campbell
 

Sure, you sometimes want to shake Joe Biden and shout, “When are you going to get to your question and let the witness speak?”

But can Sarah Palin say she’s helped evaluate the qualifications of every sitting U.S. Supreme Court justice?

Biden, the Democrats’ nominee for vice president, voted on 11 of the last 12 Supreme Court appointees. (He was sick and didn’t vote when the Senate approved Justice Anthony Kennedy 97-0 in 1988.)

Biden voted to approve Republicans as well as Democrats – though he opposed “conservative” heroes Robert Bork, whose nomination failed in 1987, and Clarence Thomas, both of whose hearings were surrounded by ugly and contentious interest-group battles.

It might be surprising to learn that while Biden voted against both of George W. Bush’s appointees, the accomplished and likable John Roberts and longtime appellate Judge Samuel Alito, the 35-year senator voted for Justice Antonin Scalia, who’s been one of the court’s most doctrinaire conservative members.

But Scalia was approved 98-0 in 1986, despite resisting efforts to probe his judicial philosophy, as Democrats focused on opposing (unsuccessfully) Justice William Rehnquist’s elevation to chief.

Unlike Palin, the Republican vice presidential nominee, Biden has a long record to examine for insight into how he might influence the selection of Supreme Court justices.

But there’s more to it than just looking at his votes.

Legal affairs writer Jeffrey Rosen argues that, during the Bork and Thomas hearings, Biden didn’t do the bidding of abortion-rights groups, something for which “women’s groups remain angry at Biden to this day.” Instead, he was interested in a broader concept of privacy, important to most Americans, the idea that the Constitution protects such things as the contraception choices of married couples.

Biden opposed Roberts and Alito in part because he found their answers lacking on the scope of constitutional safeguards for privacy.

Palin, who has a journalism degree, is neither a lawyer nor has she taught constitutional law, like Biden.

But in Alaska, the governor selects judges from a committee’s recommendations, and the appointees later run in retention elections.

In her less than two years as governor, Palin has appointed 13 judges, including a state Supreme Court justice, Joe Palazzolo and Tony Mauro wrote recently on law.com.

They reported that Palin asked at least one candidate whether the Constitution is a living, breathing document – a bugaboo for those like Scalia who favor an “original intent” approach to constitutional interpretation.

On the other hand, liberals might give Palin points for supporting a $200,000 appropriation for the Alaska Legal Services Corp., given that Republicans do not have a history of particularly favoring legal services agencies.

Nowhere is the vice president charged with helping pick Supreme Court members, but the last two VPs have been heavily involved. The next president almost surely will name one or more justices.

I’m not convinced that hopes or fears about how the next president might shape the Supreme Court should decide which candidate to choose.

Keep in mind that it’s easier to predict the volatile and divisive issues likely to come before the court in the short term – property rights, the death penalty, business regulations, etc. – than those likely to be thrust upon them unexpectedly: Bush v. Gore, anyone? Detainees’ rights?

Also consider that it’s been the Supreme Court that’s checked the Bush administration’s power-grabbing attempts and managed to maintain the Constitution’s balances.

Rosen wrote in The New Republic that, “with Biden at his side, (Barack) Obama has more than a like-minded defender of civil liberties; he has one of the nation’s most effective spokesmen on their behalf.”

Can McCain-Palin say as much?

Linda P. Campbell is a columnist for the Fort Worth Star-Telegram. Her e-mail is lcampbell@star-telegram.com.


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