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The 2008 Presidential Election and the Next Supreme Court Justice

By: Gerri L. Elder

During the final presidential debate, John McCain and Barack Obama were each asked if, as president, he would ever nominate Supreme Court justices whose positions on the Roe v. Wade decision were not in line with his own.

McCain believes that Roe v. Wade should be overturned, while Obama does not.

McCain: No Political Litmus Test for Supreme Court Justices; Abortion Decisions Best Left to States

McCain answered the question first by saying that a litmus test for Supreme Court nominations would not be appropriate and he has never and would never select a Supreme Court nominee based on this criterion.


He believes the decisions about abortion are best left to the states and that Roe v. Wade was one of many bad decisions made by the Supreme Court.

However, in saying that he believes that Supreme Court justice nominees should be chosen based on qualifications rather than a political litmus test, McCain added that a potential justice with the right qualifications, who would adhere strictly to the Constitution, would not be a justice who supports Roe v. Wade.

Obama: Agrees on No Political Litmus Test; Supports Roe v Wade

Obama agreed that there should be no political litmus test involved in the selection of Supreme Court justices.

He believes the most important criteria for any judge is the ability of the justice to provide fair and unbiased justice to the American people.

Obama also noted that the next president of the United States would be likely to select one or more Supreme Court justices, and in those selections likely lies the fate of Roe v. Wade.

Although he vowed not to make Supreme Court justice choices based on political views, he pointed out that he is a person who believes that the Roe v. Wade decision was correct.

According to Obama’s beliefs, decisions about abortion are best made by a woman, her doctors, her family and religious advisors and not by the state or federal government. He notes that there is a constitutional right to privacy involved.

The Importance of the Next Supreme Court Justice

Matt Kelley, a criminal justice blogger on Change.org, points out that the Supreme Court has had many 5-4 decisions recently, with Justice Anthony Kennedy as the swing vote.

With Justice John Paul Steven approaching 90 years of age and Justice Ruth Ginsberg now 75 years old, the next president will certainly have the ability to change the political makeup of the Supreme Court.

That being said, the impact on the criminal justice system – as well as criminal defense rights – could be significant.

With McCain as president, there is risk of diminished criminal rights.

When the Supreme Court decided 5-4 in June that detainees at Guantanamo have the right to challenge their detention as unlawful in U.S. courts, McCain went on record calling it “one of the worst decisions in the history of this country.”

Obama voted against some of the most extreme right-wing appointments to federal courts made by the Bush administration.

Both candidates publicly disagreed with the recent Supreme Court decision to overturn the Louisiana law which would have allowed the death penalty for child rapists.