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May 6, 2008

Have pro-defendant rulings gotten Justices Scalia and Thomas thrown off the "Justices like..." list?

John McCain has this new statement on judicial selection on his official website.  There is a lot of interesting stuff that merits comment, but I was particularly intrigued to see the discussion of the type of Justices he promises to nominate:

I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint.  I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference.

My first reaction was what about Justices Scalia and Thomas, are they chopped liver?  Or are they no longer part of the classic "Justices like..." list because of their votes in cases like Blakely and Booker?  Have these two been thrown off (or should I say under) the Straight Talk Express because they are big fans of jury trial rights for criminal defendants?

May 6, 2008 at 01:04 PM | Permalink

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Or are they no longer part of the classic "Justices like..." list because of their votes in cases like Blakely and Booker?

My guess is that the non-sentencing-professor portion of the population thinks of it a little differently.

President Bush frequently said that he wanted Justices "in the mold of" Scalia and Thomas. 2 points on that: (1) We all remember the judicial nominee fights of the past 7 years. Now that the Dems have the Senate, anything McCain says that can be tied to Bush will be shoved down his throat if he becomes president and nominates judges; and (2) Part of McCain's political strategy seems to be to distance himself from President Bush, to the extent he can without losing needed parts of his voting base.

Think of the "realities."

Posted by: | May 6, 2008 1:13:36 PM

1:13:36-

Of course, your theory conveniently ignores that Alito and Roberts were appointed by what's-his-name . . . oh, yeah, President Bush!

Posted by: steve | May 6, 2008 1:32:24 PM

steve, Alito and Roberts have shorter track records, Roberts was confirmed by much more than half of the Senate, and the political left is much more restrained in its criticism of those 2 than it is of Scalia and Thomas.

McCain's going to appoint conservative judges if he becomes the next president--he can't pretend otherwise, but touting Alito and Roberts instead of Scalia and Thomas is probably a "safer" move.

Also, Rehnquist wasn't appointed by GWB, he's dead, and for better or worse isn't always tarred with the same brush as Scalia and Thomas.

Posted by: | May 6, 2008 1:47:45 PM

Those are statements to the lower classes. McCain does not – and should not – put any serious thought into what he says to them. All he needs to do is provoke an emotional reaction in people that care so little about the country that they refused to read Blakely, Crawford, etc.

Posted by: S.cotus | May 6, 2008 2:35:26 PM

Assuming that McCain puts thought into these things, perhaps a more likely explanation for omitting Scalia and Thomas from the list is that they both apparently think that McCain-Feingold is unconstitutional.

Posted by: | May 6, 2008 2:42:59 PM

My guess is that less than one tenth of one percent of population would pick up any of the nuances of sentencing opinions. They are also not familiar with individual justices opinions or dissents. My guess is that McCain probably isn't conversant with this either. His legal consultants are messaging the congregation who will pass the word.

It is interesting that we have a system that is so difficult to comprehend, but that's the state of it. McCain is I'm sure influenced by the McCain-Feingold opinion however.

Posted by: beth curtis | May 6, 2008 6:50:04 PM

I think this would be giving Senator McCain (or his democratic rivals) far too much credit. It is pretty clear from their speeches that none of the Democratic candidates have given much serious thought to sentencing and/or general criminal justice issues.

No one is proposing a comprehensive reform of the guidelines, which appears to be due. And as far as I know no one is proposing a federal response to the Raich decision, which should be easy, given the bipartisan nature of medical marijuana legislation.

Posted by: Alec | May 7, 2008 12:52:05 AM

It is pretty clear from their speeches that none of the Democratic candidates have given much serious thought to sentencing and/or general criminal justice issues.

If you're interested, this isn't entirely true. Obama actually has put energy into that problem. He got a law passed in Illinois requiring that police interrogations of suspects be videotaped. That was when he was in the Illinois legislature rather than the U.S. Senate, and it's just one major problem with the legal system out of several, but still, it was an important step.

Posted by: Cyrus | May 7, 2008 8:57:10 AM

Cyrus:

I'm aware of what he did in Illinois, and that is one of many reasons I voted for him and support him, but the fact remains that this is a back issue for his campaign.

Posted by: Alec | May 7, 2008 1:17:21 PM

I don't give McCain enough credit for knowing about these topics to imply the distinctions you suggest, Doug. I think instead he left out Scalia and Thomas b/c he's pitching himself to independents in the general election, so doesn't want to tell them his SCOTUS appointments would come from the far right, especially after Scalia's self-congratulatory backing of torture on 60 Minutes. I'd be surprised if McCain had ever given Booker a second thought in this context.

Posted by: Gritsforbreakfast | May 7, 2008 8:40:35 PM

Grits:

What's funny about that is that the only audience who could possibly know and/or care about who he models his appointments on will be well-aware of the fact that Alito and Roberts are right wing to the core.

Posted by: Alec | May 7, 2008 10:01:13 PM

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