Purpose-Driven Pandering

McCain and Obama's self-serving answers at the Saddleback Forum

Damon W. Root | August 25, 2008

A little over a week ago, presidential hopefuls Sen. Barack Obama (D-Ill.) and Sen. John McCain (R-Ariz.) subjected themselves to a mild public interrogation by America's foremost self-help guru. In back-to-back interviews conducted before his massive evangelical congregation at Lake Forest, California's Saddleback Church, Rev. Rick Warren, the author of A Purpose Driven Life and other uplifting bestsellers, quizzed the major party frontrunners on matters of politics and faith. When talk turned to the Supreme Court, things really got interesting.

"Which existing Supreme Court justice would you not have nominated?" Warren asked each candidate. McCain responded by naming all four of the Court's current liberals. "With all due respect," he told Warren, "Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens." It was a bold answer, especially given that McCain had actually voted to confirm Ginsburg, Breyer, and Souter (Stevens was nominated to the Court well before McCain's Senate career began). Warren didn't follow-up on that particular inconsistency, of course, though the reason for McCain's transformation isn't hard to guess. The Arizona maverick suddenly cares about the Supreme Court because the conservative voters he's trying to woo happen to care so much about it.

Obama's answer was even more revealing. He quickly named Justice Clarence Thomas, which at first glance isn't such a shock. Obama is the liberal candidate, after all, and he needs to signal his support for abortion rights whenever the subject of the Court comes up. And Thomas has held that Roe v. Wade (1973) should be overturned. But that wasn't how Obama justified his choice. Instead, he essentially described Thomas as an affirmative action case, telling Warren, "I don't think that he...was a strong enough jurist or legal thinker at the time for that elevation."

(Article continues below video.)

Click above to watch Damon W. Root discuss this story.

Think about that. The presumptive Democratic nominee just employed one of the most common arguments used by opponents of affirmative action: namely, that it gives preferential treatment to the under-qualified based on their race, ethnicity, or gender. (Thomas, by the way, was perfectly fit to serve at that point in his career. The American Bar Association, which evaluates every presidential nominee to the Court, declared him "qualified" after combing through his law review articles, his speeches, and the decisions he wrote as a judge for the U.S. Court of Appeals for the District of Columbia. That he was a qualified black conservative naturally sweetened the deal for President George H.W. Bush.)

Now think about this. Affirmative action is routinely defended on the grounds that it gives qualified minority candidates the shot they deserve but might not otherwise receive. As that line of argument goes, after they get their opportunity, such individuals typically prove their detractors wrong. Now, regardless of what you think about Thomas' aggressive brand of conservative jurisprudence, there's no doubt that he's proven himself a fully capable member of the Court.

In fact, he's one of the few justices today whose principles sometimes trump their politics. Consider his eloquent dissent in Gonzales v. Raich (2005), where the majority struck down California's medical marijuana law in favor of federal anti-drug laws passed under the Commerce Clause. As Thomas noted, the marijuana at issue in the case was both grown and consumed entirely within one state, which is the opposite of any coherent definition of interstate commerce. "If Congress can regulate this under the Commerce Clause," he wrote, "then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

Fellow conservative Justice Antonin Scalia, on the other hand, who Obama praised at the Saddleback Forum for his "intellectual brilliance," voted with the majority in Raich, coming down squarely against a government of "limited and enumerated powers." It's safe to say that Scalia and Thomas are both politically hostile to illegal drugs. Yet only Scalia set his constitutional scruples aside that day.

Not that Obama mentioned any of that at Saddleback. Instead, he repeated a demonstrably false charge that dates back to Thomas' confirmation hearings in 1991. Shouldn't Obama be happy that a qualified black justice—even a conservative one—has been proving his intellectual critics wrong for more than a decade?

Apparently not. Lofty rhetoric aside, Obama has been just as guilty of shameless pandering as any other politician. Similarly, McCain's transparent attempt to recast himself as a judicial conservative has been less than persuasive.

With the election less than three months away, Saddleback was a necessary reminder that our would-be leaders are willing to stoop a little low in order to win. That's not exactly change we should believe in.

Damon W. Root is an associate editor of reason.

Comments

NeonCat|8.25.08 @ 3:07PM|#

(Pretty much OT)

A friend of mine who lives in Springfield IL called me from the Obama/Biden announcement to tell me she was there.

I told her I hoped she wouldn't be too disappointed when Obama is sworn in and rips off a latex face mask to reveal that he is, in fact, an old white guy. Then he will laugh until he falls over, then laugh some more.

|8.25.08 @ 3:09PM|#

Did this article disappear from the main page?

I can't really tell which answer is more disappointing. McCain's is demonstrably a lie, Obama's is either stupid or an even baser lie.

|8.25.08 @ 3:13PM|#

Wow. This article appears on the surface to be critical of Obama. Is this a first for Reason? Did Damon not get the memo from the Kochtopus?

I kid I kid

Alan Vanneman|8.25.08 @ 3:15PM|#

Clarence Thomas lied under oath, saying that he didn't talk dirty to Anita Hill. Nobody, I think, would argue that he was the most qualified nominee available. He had been an appeals court judge for less than two years, with no trial court experience. The fact that Damon Root likes the way Thomas votes isn't quite the clincher that he seems to think it is. And Thomas' self-pitying autobiography didnt' improve my opinion of him. As for pandering, I mean, this is an election.

SIV|8.25.08 @ 3:21PM|#

Clarence Thomas lied under oath, saying that he didn't talk dirty to Anita Hill.

Proof? Did she lie too?

Nobody, I think, would argue that he was the most qualified nominee available.

When are they ever? Clarence Thomas himself has said he was told that he was the most qualified conservative nominee available who could be confirmed by the Senate.

Other Matt|8.25.08 @ 3:23PM|#

Warren didn't follow-up on that particular inconsistency, of course, though the reason for McCain's transformation isn't hard to guess.

Perhaps McCain wouldn't nominate them, but couldn't vote against them based simply on politics? Nah, couldn't be that.

|8.25.08 @ 3:27PM|#

Overall a decent article, but I think it's a reach to say that Obama characterized Clarence Thomas as an affirmative action case. It's possible to have (specious) opinions that someone is unqualified without feeling that person received unfair preferential treatment due to ethnicity.

Obama's answer was shallow and brief, but at any rate, it can be seen in full here:

http://www.rickwarrennews.com/transcript/civil_forum_transcript-02.txt

McCain's remark, regarding justices whom he actually voted to confirm in real life, seems to me a much clearer case of pandering.

FWIW, I consider Scalia to be the most odious current SC justice. I'm much happier with Thomas.

|8.25.08 @ 3:42PM|#

Clarence Thomas lied under oath, saying that he didn't talk dirty to Anita Hill.

And you know that ... how? You were present for the coke can incident?

He said, she said.

|8.25.08 @ 3:46PM|#

McCain and most republicans more or less look at one and only one aspect to whether to support a person the president has chosen to put on the bench, are they qualified. As such, they have voted many times for Justices they would never have submitted if they were president.

classwarrior|8.25.08 @ 3:59PM|#

Regarding Clarence Thomas: The ABA's "qualified" classification was the weakest possible endorsement of his merit for the nomination. There were plenty of other nonwhite jurists who were better qualified, just not conservative enough. He was also not above playing race politics himself with the "hi-tech lynching" comment, an insult to the actual victims of that horrendous practice.

|8.25.08 @ 4:18PM|#

Whenever I hear the name Clarence Thomas, I think of Clarence Carter.

" Stroke it to the East. Stroke it to the west. Stroke it to the woman that I love the best.
I be strokin
...
And she start callin my name

She'd say " Clarence Thomas, Clarence Thomas, Clarence Thomas, Oh shit Clarence Thomas..

....
..
Stroke it Clarence Thomas but dont stroke so fast
If it aint tight enough you can stick it up my WOO!"

|8.25.08 @ 4:27PM|#

SCOTUS related but a slight threadjack nevertheless.

I heard Glenn Beck declare that he was a "libertarian" today.....

Jumped the shark and died in the mass media-hole all at once. Its been nice knowing the LP, but when a complete statist hack like this miscasts himself its time to close the doors.

SIV|8.25.08 @ 4:35PM|#

I'll say it again...When has "the most qualified jurist" ever been nominated or confirmed for SCOTUS?
The common lefty reaction to Clarence Thomas suggests, to put it mildly, a bias based on race, class, and geographic origin as much as to his judicial philosophy.

|8.25.08 @ 5:11PM|#

"""Jumped the shark and died in the mass media-hole all at once. Its been nice knowing the LP, but when a complete statist hack like this miscasts himself its time to close the doors."""

The problem with political parties are they start attracting the shysters when the party starts to look viable. People who want to use the party for their ends. Cough, cough, Bob Barr, cough, cough. Also, parties feel the need for a consistant message, they need to act like a party that plays the political game to win. I don't think libertarian and party really belong in the same sentence. Watch, the more popular the LP becomes, the more it will be watered down to the point it will no longer carry a real libertarian message.

New World Dan|8.25.08 @ 5:21PM|#

Wrong! The correct answer? Anthony Kennedy.

Next question...
Sorry, I was channelling John McLaughlin.

|8.25.08 @ 5:26PM|#

The criticism of McCain in this article is based on a fundamental flaw. The question posed was "which justice would not have NOMINATED," not which justice would you not have voted for.

As far as I know, McCain did not nominate any of the justices, he only voted for them. In my eyes, there's a big difference.

|8.25.08 @ 5:26PM|#

Justice Ginsburg was confirmed on a 96 to 3 vote. It is a certainty that far more than those 3 Republicans (Sens. Helms, Bob Smith, and Kickles) would not have nominated her. Damon and others are being completely ridiculous to assume that it's pandering to say that you would not have nominated someone whom you voted to confirm. That doesn't mean that Sen. McCain will have a perfect judicial philosophy by any means, surely, but this charge is ridiculous.

On the other hand, the other way around seems more certain; it's pretty obvious that since Sen. Obama voted against Justices Roberts and Alito, he would not have nominated them. I'm pretty sure, then, that he would not have nominated Justice Scalia, for all his praise of him.

|8.25.08 @ 5:27PM|#

Whoops, odd typo for Sen. Don Nickles there.

Matilda|8.25.08 @ 5:43PM|#

"McCain's remark, regarding justices whom he actually voted to confirm in real life, seems to me a much clearer case of pandering."

Or reflective hindsight

David Nieporent|8.25.08 @ 9:54PM|#

People who want to use the party for their ends. Cough, cough, Bob Barr, cough, cough.

What "ends" do you think he's using the party for? The LP nomination and $0.50 isn't worth $0.50. Why would anybody spend four years in a long-shot attempt to gain a worthless nomination unless he actually believed in these things?

If you think the LP "looks viable," you've already started using many of the substances that won't be legal until the LP gets elected.

|8.26.08 @ 2:40AM|#

"Warren didn't follow-up on that particular inconsistency..."

He didn't follow-up on anything, which (one can only guess) was a condition for the participation of both McCain and Obama: one question, any answer that works, and no challenges. I just wish the "media" would be more honest about the terms and conditions of the debates and "forums" they sponsor.

dpsc|8.26.08 @ 6:01AM|#

Clarence Thomas may have been qualified for the seat, but he was not anything like the _most_ qualified for it that there was in the rather large poll of qualified candidates. Let's not dissemble- had he not been a black conservative do you really think he would have have been considered for the seat? Over everyone else out there?

That said, he has been a surprisingly principled justice, and I think he's done a remarkably good job. He's probably my favorite justice, even if I disagree with a good number of his positions.

|8.26.08 @ 7:25AM|#

Warren's question was loaded to begin with. Two, maybe three Republican apppointees (i.e. Stevens, Souter, sometimes Kennedy) turned out to be quite different from what was expected. I can't think of a comparable turncoat Democratic appointee on the current court (Byron White has been out for a long time). Of course, there aren't many to choose from....

Such a question has much more relevance for McCain, who would have to fess up to a mistake (his and his party's) or else sound litmus-testy and deliver a long list. Obama got an easy and obvious Bill Cosby moment.

dave|8.26.08 @ 9:55AM|#

Ask yourself 4 questions: Is Obama a dishonest socialist? Is McCain a dishonest militarist? Is the U.S.A. now rapidly becoming a welfare/warfare/hyperinflation/hyperbureacracy that must soon collapse? Is the U.S. government now an out-of-control Ponzi scheme?The U.K. is now worse than the U.S.A. in Byzantine government. Every sane libertarian should read Theodore Dalrymple's "How Not to Do It," which can be found at
www.city-journal.org/html/17_1_oh_to_be.html, and ponder our situation. "A perverse ideology reigns, in which truth and probity play no part." ... "Britain now has more educational bureaucrats than teachers, as well as more health-service administrators than hospital beds." ... "The state has become a vast and intricate system of patronage, whose influence very few can entirely escape."

|8.26.08 @ 11:48AM|#

Obama's answer was shallow and brief . . .

Well, sure. That kind of thing is above his pay grade, you know.

|8.26.08 @ 4:38PM|#

How f*ing disingenuous. I'm sure Mr. Root is well aware of the fact that the ABA's "qualified" rating is not at all a glowing endorsement of a candidate; it's basically a C grade. And however one feels about affirmative action as a general matter, Obama is right that Thomas isn't smart enough to be on the Court (as his performance ever since then has shown) and that his race figured prominently in his nomination.

|8.26.08 @ 6:32PM|#

"I don't think that he...was a strong enough jurist or legal thinker at the time for that elevation."


What a stupid answer. No fast thinker would ever attempt to paste the opposition with a criticism that is more apt for oneself. Its usually best to not steer a conversation towards your weaknesses. Oh well, no one ever said he was smart.

|8.27.08 @ 1:38AM|#

No fast thinker would ever attempt to paste the opposition with a criticism that is more apt for oneself.

You must live in a parallel universe in which John Kerry was elected President in 2004.

|8.27.08 @ 2:57AM|#

Testing.