Stark Contrasts Between McCain, Obama in Judicial Wars; Olson heads McCain court advisory committee

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NYT: Stark Contrasts Between McCain and Obama in Judicial Wars
By NEIL A. LEWIS
Published: May 28, 2008

WASHINGTON — The presidential election, lawyers and scholars agree, will offer voters a choice between two sharply different visions for the ideological shape of the nation’s federal courts.

Senator John McCain of Arizona, the presumptive Republican nominee, has already asserted that if elected he would reinforce the conservative judicial counterrevolution that began with President Ronald Reagan by naming candidates for the bench with a reliable conservative outlook. Senator Barack Obama of Illinois has been less explicit about how he would use the authority to nominate judicial candidates, but he would be able to — and fellow Democrats certainly expect him to — reverse or even undo the current conservative dominance of the courts.

Both have been resolute soldiers in their parties’ political wars over judicial nominations during the last several years. While Mr. McCain has supported President Bush’s judicial nominees, including John G. Roberts Jr. as chief justice of the United States and Samuel A. Alito Jr. as an associate Supreme Court justice, Mr. Obama opposed those nominations and favored Democratic filibusters to block many Republican nominees deemed too conservative. Senator Hillary Rodham Clinton of New York, who remains in the Democratic race, has similarly opposed many of Mr. Bush’s judicial nominees and also voted against the confirmations of Judges Alito and Roberts.

Despite his record, Mr. McCain has been obliged to deal with the burden that falls on any Republican candidate to deal with the party’s conservative wing, which demands commitment to its goal of tilting the courts rightward....

In 2005, Mr. McCain aroused the suspicion of some conservatives alert to ideological heresy when he joined six other Republicans and seven Democrats in the Senate to form a compromise on appeals court nominations to break a nasty deadlock. Under the plan brokered by the group, known as the Gang of 14, the Democrats agreed to end their filibuster blocking some of Mr. Bush’s appeals court nominees, in exchange for other conservative nominees being dropped from consideration. Although the plan averted an impasse, some conservative leaders spoke of it in terms of a near-betrayal and said it suggested that as president, Mr. McCain might use judicial appointments as bargaining chips on other issues.

In response, Mr. McCain has chosen to do everything in his power to demonstrate his fealty to their cause. He announced an advisory committee on the courts headed by Theodore B. Olson, a leading conservative lawyer and former solicitor general, that is full of people like Charles J. Cooper, who had been influential in selecting reliable conservative nominees in the Bush and Reagan administrations. In an interview, Mr. Olson said he was confident that Mr. McCain’s nominees would be carefully screened to assure that they were in the mold of reliably conservative recent Supreme Court appointments like Chief Justice Roberts and Justice Alito....

http://www.nytimes.com/2008/05/28/us/politics/28judges.html?pagewanted=all