Senator Obama’s selection of Senator Joe Biden of Delaware will, undoubtedly, represent a sharp contrast with Senator McCain and his running mate.  As I’ve mentioned in a previous post, the issue of the direction of the Supreme Court of the United States is literally at stake in this next election.  Two sharp contrasts have emerged through the nomination process.  For those who share a conservative judicial philosophy, the prospects of an Obama-Biden Supreme Court selection is troubling. 


Here’s the contrast:  Senators Biden and Obama both voted against the confirmation of Chief Justice Roberts and Justice Samuel Alito to the Supreme Court of the United States.  Senator McCain voted in favor of both of them and participated in brokering the “Gang of 14” compromise which, in fact, allowed Chief Justice Roberts and Justice Alito to get up or down votes.  In stark contrast, Sen. Biden not only voted “no,” but also voted to support a filibuster of Sam Alito. 


Justice Alito was confirmed by a 58-42 margin in the United States Senate.  In commenting on why he voted “no” to Judge Alito, Sen. Biden said:  “I think Judge Alito should not be on the court.  He’s a decent man with wrong ideas.”  Never once does Sen. Biden acknowledge the tremendous academic record of Justice Alito, who attended Princeton University for his undergraduate education and Yale for law school. As I mentioned, so concerned over the nomination of Sam Alito, Sen. Biden supported efforts for a filibuster staged by the Democrats which I called “an act of complete desperation.” 


Sam Alito served in the Justice Department as well as a judge on the U.S. Court of Appeals for the Third Circuit.  He’s considered one of the best legal minds in the country.  Yet when he came before the Judiciary Committee, Sen. Biden said, “When I look at all the evidence before us, Judge Alito’s writings, his statements, his judicial records and his opinions, and the little we learned about him in these hearings, I am forced to conclude that he should not serve in the Supreme Court.  I will vote no.” Sen. Biden’s leadership in trying to derail the nomination of Sam Alito should cause pause for those conservatives who are considering the idea of supporting the Obama-Biden ticket.  Despite Sen. Obama’s well-intentioned plans to reach out to evangelicals, the “no” votes on the confirmation of Chief Justice Roberts and Justice Alito will serve as a warning sign.  It must be remembered that both Sen. Obama and Sen. Biden voted against both Roberts and Alito. 


Concerning John Roberts, Senator Biden, who serves on the Judiciary Committee, said, “I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, O’Connor, who look at the Constitution, quoting Marshall, as a Constitution intended to endure for the ages to come, and consequently to be adapted to the various crises of human affairs. That’s an expanding document.”  Sen. Biden went on to note that he had “closely reviewed Judge Roberts’ past writings as a political appointee and a government lawyer, his personal statements and commentaries during his tenure in private practice and his testimony before this committee.”  After considering all of this, Sen. Biden voted “no” as did Democratic Presidential Nominee Barack Obama.


John Roberts is one of the preeminent constitutional scholars and advocates in U.S. history.  I have had the privilege of arguing alongside Chief Justice Roberts as well as against him in cases.  He is a tremendous advocate who has a total grasp of the Constitution.  He fundamentally disagrees with Senators Obama and Biden’s view of constitutional interpretation.  The Constitution cannot be effectively amended simply because a majority of the Supreme Court Justices say so.  The Constitution can be amended only by the people.  This is what our constitutional Republic requires.


Although there has not been much discussion on the issue of judicial nominees so far in the political campaigns–other than the excellent question to Barak Obama and John McCain posed by Rick Warren at the Saddleback Forum  – the issue is now sure to be front and center.   Senators Obama and Biden voted against Roberts and Alito; Senator McCain voted for them. 


As previously mentioned, despite Sen. Obama’s attempt to reach out to the conservative, evangelical and pro-life Catholic base of the Republican Party, the Supreme Court nominee history will thwart that effort.  Young evangelicals are just as committed to the issue of life as their parents’ generation.  Young people of faith understand the role of the Supreme Court in our constitutional Republic.  These same young people will look at the evidence and realize that Sen. Obama and Sen. Biden voted against two of the best-qualified Supreme Court nominees we’ve had in our lifetime.


Barry, you should be thrilled with the prospect of a change in the direction of the Supreme Court. I certainly would not be.




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