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Judicial Advisers Line Up Behind Obama, McCain
Influential attorneys on both sides look to reshape federal bench
The National Law Journal
July 09, 2008
Plenty of influential lawyers have been whispering in the ears of presidential hopefuls John McCain and Barack Obama about how to mold the federal judiciary with future appointments.
Across the country, from academics to powerful attorneys in private practice and in politics, advisers are in on the ground floor of reshaping the federal bench.
Neither candidate has taken a position at odds with their own political party on judicial appointments. So simply knowing who has the candidates' ear may serve as a harbinger of nominees to come.
The potential number of judges the next president might appoint is impressive. With U.S. Supreme Court justices in their 70s and John Paul Stevens at 88, as many as five justices could step down in the next four years. The appellate and trial courts may have 45 vacancies when the new president takes office, and a bill to create 50 new judgeships could give the next president nearly 100 openings to fill immediately.
McCain has suffered from mistrust among core conservatives for his leadership role among the so-called "Gang of 14," a group of moderate Republicans and Democrats whose deal sidestepped a potential 2005 constitutional showdown over Democrats' judicial filibusters and cleared the confirmation of Supreme Court nominee Samuel A. Alito Jr.
BRINGING ON OLSON
To counter that mistrust, McCain brought out as a supporter the gold standard for conservatives, Ted B. Olson, the former U.S. solicitor general from 2001 to 2004 who successfully argued the presidential election case Bush v. Gore, 531 U.S. 70 (2000).
Olson introduced McCain for a recent speech on the judiciary at Wake Forest University, where the candidate tried to put conservative doubts to rest. "He expressed the view that he would appoint judges that interpret the law and do not make it up as they go along," Olson said.
McCain has a 45-member Justice Advisory Committee headed by Olson and Sen. Sam Brownback, R-Kan., who is a staunch anti-abortion advocate.
The advisory group includes Charles Fried, a Reagan administration solicitor general and a Harvard University law professor; John McGinnis, professor at Northwestern University School of Law; Orin Kerr, George Washington University Law School professor; Eugene Volokh, professor at University of California at Los Angeles School of Law; and Rachel Brand, a former assistant attorney general in the U.S. Department of Justice Office of Legal Policy.
Among the committee members is Steven Calabresi, a constitutional law professor at Northwestern University and co-founder of the Federalist Society, a conservative stomping ground for many Republican judicial nominees.
McCain is committed to appointing judges much in the mold of Alito and Chief Justice John G. Roberts Jr., Calabresi said. "I think he sees the role of judges [is] to apply the law, rather than [be] engines of change," he said.
By contrast, Obama, a constitutional law lecturer at the University of Chicago, voted against confirming Roberts and Alito. He has been sharply critical of the Supreme Court's decisions limiting back pay in a sex discrimination case and curbing desegregation plans in Louisville, Ky., schools. But he praised the court for granting rights to prisoners held at GuantAnamo Bay, Cuba. Obama has a less formal group of legal advisers on judicial issues, but no less legal star power.
Harvard Law School professor Charles J. Ogletree is a mentor and adviser to Obama. Also, in 1991, Ogletree represented Anita Hill during the confirmation of Supreme Court Justice Clarence Thomas.
"I'm certain he will take the lessons of [Jimmy] Carter and [Bill] Clinton to ensure diverse appointments by geography, gender, race and ideology," Ogletree said.
Another Obama backer at Harvard who chips in occasional advice is Laurence Tribe, a constitutional law professor.
Also on the list is Abner Mikva, a retired judge on the U.S. Circuit Court of Appeals for the District of Columbia who served in Congress and taught law, as well as Christopher Edley Jr., dean of the University of California, Berkeley School of Law.
On the West Coast, Obama's California co-chair for the campaign and personal friend is Jeff Bleich, current State Bar of California president and a partner in Los Angeles-based Munger, Tolles & Olson's San Francisco office.
"His model would not be of the justices serving today, but over the long term, people like Justice Robert Jackson," who signed the landmark Brown v. Board of Education decision, Bleich said.
McCain, too, has a California connection with plenty of judge-picking experience. Gerald Parsky, chairman of a Los Angeles investment firm, has headed the California judicial selection committee of George W. Bush.
