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The Smart Guys weight Supreme Court picks from John McCain versus Hillary/Barack

Thursday, February 7, 2008
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HH: We’re joined by the Smart Guys. From Chapman University Law School, where he is the dean of the law school, John Eastman, and from Duke University Law School, where he’s a professor, soon to be the dean at the University of California, Irvine Law School, Erwin Chemerinsky. Erwin’s from the left, John’s from the right. Gentlemen, a big question. Would there be a difference between the Supreme Court justices appointed by either Hillary Clinton or Barack Obama, and those appointed by either John McCain or, let’s just leave it to John McCain, since he’s the prohibitive frontrunner. Erwin?

EC: Oh, absolutely. McCain is going to likely pick Republicans. My guess is he’s going to pick conservative Republicans, though I doubt they’ll be as conservative as George Bush’s picks. Hillary Clinton is likely to pick the same kind of judges that Bill Clinton picked. She’ll likely pick moderate liberals, but not far left liberals. It’s hard to know about Barack Obama, but my guess is, just the nature of the political system, he’s going to do the same. So you can get, you know, moderate to conservative Republicans from McCain, moderate liberals from Clinton or Obama.

HH: John Eastman?

JE: Well, I disagree with the characterization of Bill Clinton’s appointees. Stephen Breyer might fit that bill, but Ruth Ginsburg certainly does not. But you know, there’s going to be an internal debate within the McCain camp, assuming McCain wins this thing, and I’m not willing to concede that yet. There’s a lot more to go in this primary season. But he now has his advisors on judicial matters, legal matters. Both Ted Olson, who’s obviously a very strong conservative, and Warren Rudman, who was involved in what conservatives consider to be a fairly disastrous pick with David Souter back in the first Bush administration. So we’re not quite clear yet what we get out of McCain, but at least there’ll be a debate about it.

HH: Let me ask you both. Would you care if you were picking blind, but you had to take three picks from Clinton or Obama, or three picks from McCain, would it matter to you, or do you think they’re all going to wash out in the end, Erwin Chemerinsky?

EC: I’m not sure I understand the question, by what you mean they’ll wash out in the end.

HH: Would they lead to the same results in Supreme Court cases?

EC: Well, I think you’ve got to look at the current composition of the Court. The reality is the 2008 election is going to determine if the Court becomes more conservative or stays the same. It’s not likely to cause the Court to be more liberal. The reason is Roberts, Thomas and Alito are all under age 60. Scalia and Kennedy are in their early 70’s. In all likelihood, those five justices are going to be around for another decade. If there’s vacancies, and I think there will be in the next four years, the most likely are Justices Stevens, and/or Ginsburg, and/or Souter. And so if McCain gets to replace one or all of those three, it’s going to really solidify and increase the conservative majority. If Obama or Clinton gets to replace one or all three, it just keeps the Court in the same place it is right now.

HH: Dean Eastman, your analysis?

JE: You know, I agree with that. The two most likely retirees in the next four years are Justice Stevens and Justice Ginsburg. And Hillary Clinton would be replacing them with people younger of the same judicial outlook, one has to expect. Justice Souter is, I doubt, going to be retiring in the next four years, or even the next eight. But if he does, remember, he was a Bush appointee, and he is clearly one of the most liberal members of the Court. So if McCain is making picks like that, then there wouldn’t be any difference. But I suspect that in order for McCain to win the election, if he gets through the primaries, he’s going to have to appeal to the conservatives. And one of the appeals is going to be that he’s naming folks like Ted Olson to prominent positions of authority in his administration, who will have a hand in judicial selection. And if that’s true, then I wouldn’t expect we’d get a repeat of David Souter. We’d get people more like Roberts and Alito, as he’s apparently pledged several times now on the campaign trail.

HH: Yes, he has pledged that. Now you’re both being very moderate in your assessment of the degree of change that could come to the Court. But of course, when you’ve got six members 68 years and older, you have a degree of possibility of radical change in the Court. And John Eastman, if you had four, five or even six justices change in the course of the next presidency, which could go as little as four or as long as eight years, how radically different could the Court be?

JE: Well, it would be radical. If you’re talking about all six, other than Roberts, Alito and Thomas, so you’re taking Scalia and Kennedy out, which is the current five vote majority whenever the Court is going on conservative cases, and handing all of those over to either Barack Obama or Hillary Clinton, you’re talking about a pretty hard turn left for a generation.

HH: And how would that manifest itself, Erwin Chemerinsky?

EC: Well, let me agree with John. Of course, that could have happened as a result of the 2004 election. Had John Kerry replaced Chief Justice Rehnquist and Justice O’Connor, I think that you would have seen the solid five person more liberal majority, or with six. Well, obviously, you pick any of the issues we’re talking about. Abortion rights – if you create an even more solid conservative majority, I think Roe v. Wade could be overruled. Affirmative action – we already have five votes for it. Separation of Church and State – there may already be five votes. You create a liberal majority, those changes aren’t going to happen. On federalism type issues, states rights, I think there’s five votes now to curtail the powers of the federal government in the name of the states. On the other hand, if a Hillary Clinton or a Barack Obama picks six justices, it won’t happen. But the odds of six vacancies on the Supreme Court, even over eight years, given the longevity of being a Supreme Court justice, seems really unlikely.

HH: Well then, let me try it a different way. Dean Eastman, Justice Kennedy’s out for a walk, and he looks the wrong way, and he steps in front of a cement truck. How radical…does it make a difference if it’s President McCain or President Obama at that point?

JE: Of course it does, unless McCain names somebody like Souter. But I think having Ted Olson on his campaign inner circle now, which is a very smart move on this part, means that’s very unlikely to happen. So the real fight here is going to be whether Stevens and Ginsburg get replaced by younger liberals to kind of shore up for a while the four vote bloc on the liberal side, keeping Justice Kennedy in the swing seat for the foreseeable future, or whether McCain, with Ted Olson advising him, names a conservative that means Kennedy’s vote doesn’t matter, and therefore, he’s not the swing vote, that there would be a vote of five conservatives voting for conservative principled cases.

HH: Let’s go to the lower courts. Of course, Professor Chemerinsky, each president normally gets between 200 and 400 lower court judges. How radically different would the McCain and the Clinton/Obama judges be?

EC: There’s no doubt there’d be differences. McCain’s going to pick Republicans, and probably pick moderate to conservatives, though again, I wouldn’t expect that he would pick judges as far to the right as a lot of the Bush picks. Now with regard to Clinton, and I’m glad to talk names, Bill Clinton picked lots of moderate, even moderate-conservative judges. Look at the 9th Circuit – Barry Silverman, Susan Graber, Tallman, and we can go down the list. I can go through the 4th Circuit. Clinton’s picks were really a disappointment to the left. If Hillary Clinton picks from that way, that gives you the sense she’s going to pick moderates to maybe sometimes moderate-liberals. My hope would be if it’s Obama, he’s going to pick much more liberal judges than Hillary Clinton would.

HH: John Eastman, last word to you.

JE: Yeah, Erwin, you didn’t list a bunch of your friends, like Rosemary Barkett down on the 11th Circuit, or Marsha Berzon out on the 9th Circuit, who are very strong leftist judges, liberal judges. I think we’d get out of Hillary a mix of just left, slightly left of center to far left of center, to try and keep the triangulation strategy, to keep a ruling coalition that Bill tried to accomplish during his eight years.

HH: John Eastman, Dean of Chapman Law School, Erwin Chemerinsky from Duke, thank you both, the Smart Guys.

End of interview.

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