St. Louis Federalist Society Event: Obama, McCain would approach

Daily Record and the Kansas City Daily News-Press, Oct 28, 2008 by Angela Riley

With the presidential election only a week away, the St. Louis Federalist Society hosted an event that examined each candidate's potential influence on the federal judiciary.

The topic was discussed because so little attention has been paid to it in this election.

"It's something that I've heard so little about," said St. Louis Federalist Society President Jennifer Wolsing, of Husch Blackwell Sanders. "I knew that it should be brought to the attention of members."

The society brought in former Chief Justice Tom Phillips of the Texas Supreme Court to address the subject. He served on the court from 1988 to 2004 and now is a partner at Baker & Botts in Austin, Texas.

With such different candidates, Phillips expects both Sen. John McCain and Sen. Barack Obama to take different approaches to the selection of judges. Since Obama is an attorney and used to lecture on constitutional law, Phillips believes that he'd take a more hands- on approach than McCain would.

"McCain isn't as hands-on," he said. "Obama taught this stuff. He knows lawyers, personally, that he would be talking to for opinions. Whereas, McCain would be having staffers calling people for him. This is not his central area of interest and is something that Obama has more knowledge in."

In addition, Obama would probably take more time to examine a potential judge's philosophical leanings, he said.

"Obama, no doubt, has strict philosophical opinions which he will be looking for," he said. "We just don't know what they are."

Phillips cited that even as a lecturer on constitutional law, Obama was particularly mum on the topic, letting his students participate in most of the discussions and never publishing an article in a law review journal. But during the third presidential debate, Obama said that he looked for a U.S. Supreme Court judge who would "provide fairness and justice to the American people," and if someone was being treating unfairly, "the court has to stand up, if nobody else will."

McCain, on the other hand, would have to be more bipartisan in his decisions because of the makeup of the Senate, Phillips said.

"McCain's going to have to work with the American Bar and Democrats to get his nominees confirmed because he doesn't have the luxury of the majority of the Senate being Republicans, but that is something that he has a tendency to do anyways," Phillips said.

Attorney Thomas M. Walsh, of Sonnenschein Nath & Rosenthal, wasn't surprised by what he heard.

"These are issues that I keep up to date on. It's what I expected to hear. Obama will examine philosophy more than McCain, and McCain will have to be more bipartisan in his decisions."

Phillips also discussed if there would be a break in the trend of Supreme Court judges coming from the federal Court of Appeals. The trend started after President Dwight Eisenhower appointed Chief Justice Earl Warren to the court, someone he thought to be a conservative judge but turned out to be one of the most liberal in the court's history. With judges from the appeals courts, you have more of a record of what they might do on the high court, Phillips said.

Currently, all nine Supreme Court Justices have served on the Court of Appeals.

"You might see McCain break out of the mold and appoint a governor or a senator, someone with a good breadth of practice experience," Phillips said. "I don't believe Obama would want any unpleasant surprises."

Some questioners asked if the future president would have the opportunity to nominate a new judge to the Supreme Court, and who would be the first on the court to resign.

While senior Justice John Paul Stevens might be the obvious choice followed by Justice Ruth Bader Ginsberg, Phillips said he didn't believe that any judge would resign, unless there were health reasons.

"The real impact that the new president is going to have on the judiciary is in the lower courts," Phillips said. "Sixty percent of the three judiciary panels are Republican nominees. It isn't going to take much to switch it to the majority being nominated by a Democrat."